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The Events Leading to the Constitution The Revolution The American Revolution raged from 1775, when shots were first fired at Lexington and Concord, until 1783 when the Treaty of Paris formally ended the war (even though the final battle was fought at Yorktown in 1781). Students learn in school that the Revolution was brought about by freedom-loving patriots who desired self-governance, shedding off the oppressive yoke of British rule. This story is partly true. The causes of the Revolution are varied and complex, and by no means did the entirety of the population of the colonies support the uprising. Many were fighting for the right to self-rule and determination while others were fighting for largely economic reasons (they were sick of paying high taxes to fund the various wars of the British Empire or they did not want to pay off their British creditors) while others yet were fighting for adventure. Some, especially along the western frontier of the colonies, paid little attention to the war in the east as it did not directly affect them. Finally, many colonists remained loyal to the crown and even fought side-by-side with their British cousins against the rebels. Regardless of their politics, loyalties, and motivations, most would have agreed that the chances of a rag-tag, loosely associated, underfunded, diverse group of colonies defeating the strongest military empire in the world would have been slim at best. Discontent with British rule had been culminating for at least ten years before the skirmishes at Lexington and Concord. The British viewed the resource-rich colonies as a commodity that could The U.S. Constitution – 15 – be exploited and taxed to fund their extensive wars and campaigns around the globe. These increasing taxes on goods such as stamps and tea resulted in the beginnings of organized dissent, like the Boston Tea Party in 1773. Coupled with these high taxes was the reality that the planter classes in the middle Atlantic and southern colonies owed more and more to their British creditors for goods bought on credit—something that George Washington and Thomas Jefferson understood and experienced first-hand. A small, influential group of citizens believed that the colonies would be better as a sovereign, self-governing entity, divorced from British rule and control. These influential few echoed the sentiments of many who saw themselves as British citizens, but did not have the rights and privileges of those living in Britain. That is, they paid taxes to the British crown yet had no representative voice in Parliament. This notion of “taxation without representation” was a rallying cry for many itching for rebellion. The Declaration of Independence On July 4, 1776, 56 delegates to the Second Continental Congress signed the Declaration of Independence (including Lyman Hall and Button Gwinnett from Georgia). The treatise was penned by Thomas Jefferson, one of the youngest and brightest delegates to the Congress, under the tutelage of the more experienced John Adams and Benjamin Franklin. The document is one of rebellion, not reconciliation. It is written almost as a personal letter to King George III of England and explains in detail the reasons for rebellion against the crown. Jefferson borrowed liberally from many contemporary and historical sources, most notably John Locke’s Second Treatise of Government, where Locke’s “life, liberty, and property” became Jefferson’s “life, liberty, and the pursuit of happiness.” In the document, Jefferson argues for a limited government that exists at the consent of the governed: the people, who possess these “inalienable” rights. Those who signed The Basics of American Government – 16 – the Declaration were literally putting their lives on the line. Had the Revolution been lost, they would have been tried (and probably executed) for treason. The Declaration is one of our sacred founding documents largely because it articulates the philosophical basis for our political system. The Articles of Confederation After the former colonies had formally declared independence from Great Britain, one of the first orders of business was setting up some sort of government, largely in order to effectively wage war. The 13 former British colonies did not necessarily view themselves as one nation. Rather, they viewed themselves as 13 independent, sovereign countries, loosely-affiliated, but working together (somewhat ineffectively) to fight the Revolution. The idea of one “United States of America” had not yet taken hold. However, some sort of government had to be created to coordinate the activities of all the former colonies. In November 1777, the Articles of Confederation, written by John Dickinson, was established. The hallmark of this new government was that the national government possessed very little real power. Rather, the true power remained with the states. A confederation is a loose association of independent or quasi-independent states. The national government under the Articles was so weak that it could not levy taxes, wage war, regulate commerce, or issue a uniform currency among all the states. It contained no executive branch, which resulted in relatively poor leadership. Rather, the power that did exist was concentrated in the legislature, or Congress. However, passing legislation or amending the Articles was onerous and difficult, requiring a unanimous vote of all 13 members (Kammen, 1986, pp. 10-18). It quickly became apparent that the Articles was an inefficient, ineffective system of government and was created in a haphazard fashion. It was not even formally ratified by the states until 1781. The result was that funding the Revolution was uncoordinated and ineffective, making The U.S. Constitution – 17 – the American victory even more impressive. Nevertheless, the Articles was our first system of uniquely American government and existed until the late 1780s. It should also be noted that it is within the Articles that the words “United States of America” is mentioned for the first time, which is a rather odd coincidence considering the weak nature of the national government provided by the document. The Great Compromise By 1787, many in the new nation realized the inherent inefficiencies of the Articles of Confederation. They argued that such a weak national government could leave the new nation exposed to financial ruin or ripe for future foreign invasion by Great Britain, France, or Spain, all of whom still laid claim to vast stretches of the North American continent. However, others argued that there was no need for more government beyond what the states and the weak national government provided. Both sides tended to agree that the Articles could or should be amended to function better. That was the charge of those delegates who met in Philadelphia in the summer of 1787—to amend the Articles, not create a new system of government. That is, however, exactly what they did. Twelve states sent delegates to the Constitutional Convention, everyone except Rhode Island. The meetings occurred in secret; the windows were nailed shut, and sentries were posted at the doors and entrances. The framers very quickly understood that they would be proposing a brand new government, one which looked radically different from what existed under the Articles. They also understood that such a development would not be without controversy. Two Plans of Government Many delegates from the various states made speeches and proposals as to what the new government should look like. However, the proposals of two factions soon became the most popular and seriously considered. The Virginia delegates proposed the Virginia The Basics of American Government – 18 – Plan, or Randolph Plan, which was written by James Madison, who had come to the Convention with the proposal already written for the most part. The Virginia Plan proposed a radical new form of government, one in which the national government was significantly more powerful than that found under the Articles. If accepted, the states would be ceding a great deal of power to the national government. The plan proposed a bicameral or two-house legislature with representation in both houses based on population which favored the large population states such as Virginia, Pennsylvania, and Massachusetts. The people would choose members of the lower house, while state legislatures would chose members of the upper house (http://www.ourdocuments.gov). The plan proposed a fusion-of-power or parliamentary system, whereby the legislature would choose the chief executive (this is the type of arrangement present in Britain, and with which the framers were familiar) (Kammen, 1986, pp. 22-25). With regard to the judicial system, the Virginia Plan proposed a type of “supreme court” chosen by the upper-house of the legislature (http://www.ourdocuments.gov). In a philosophical sense, the Virginia Plan viewed governmental power as being derived from one, unified American “people,” rather than from the states; much different than the Articles, which was statebased in terms of power. In contrast, the New Jersey delegates proposed the New Jersey Plan, or Paterson Plan. This plan looked very similar to the Articles, because it proposed a unicameral or one-house legislature with equal representation regardless of state population and favored the small population states such as New Jersey and New Hampshire. It proposed a multi-person chief executive chosen by the legislature (Kammen, 1986, pp. 25-30). In a philosophical sense, the New Jersey plan assumed that national government power would be derived from the states, not the American people as a whole. In our Constitution, there are elements of each proposal with more weight given to the Virginia Plan. After much debate, a compromise The U.S. Constitution – 19 – was reached by the framers, which came to be called the Great Compromise, or Connecticut Compromise, because it was largely brokered by the Connecticut delegation. The proposal that resulted from the Constitutional Convention represented a radical departure from the government under the Articles. The Document The United States Constitution possesses seven articles, the first three of which detail the various branches of government. Article I outlines the powers of Congress (who would pass the laws); Article II the powers of the President (who would execute the laws); and Article III the powers of the Judiciary (who would interpret the laws). The framers chose this sequence deliberately, believing that Congress, the legislature, is the strongest branch of government. They were familiar with how a strong legislature functioned (British parliament) and were wary that the President (which had never before existed) would become tyrannical or king-like, and they had just had a bad experience with a king leading up to the Revolution. Some among the framers (like Alexander Hamilton) even advocated that the President should possess powers similar to a king, serving a life-term and functioning as the strongest entity in the government, yet they were over-ruled. Rather, they reasoned, a bicameral (twohouse) legislature possessing the most power would best articulate the wishes of the people. Therefore, Article I is long and detailed. Conversely, Article II, which deals with the presidency, and Article III, which addresses the Courts, are brief and less detailed. Neither a president nor an independent judiciary had ever existed and the framers were not exactly sure how either would function. The document provides for a bicameral legislature. The lower house, the House of Representatives, is directly elected by the people. Representation in the House is based upon state population; the more people in a state, the more representatives it has in the House. However, representation in the upper house, the Senate, The Basics of American Government – 20 – is equal with each state possessing two, regardless of population. According to the Constitution, state legislatures choose each state’s Senators, a provision in place until the passage of the Seventeenth Amendment in 1913, which resulted in the direct election of Senators by the people. House members serve two-year terms, must be 25 years old, and must be U.S. citizens for a minimum of seven years. Senators serve six-year terms, must be 30 years old, and have been U.S. citizens for at least nine years. Both House members and Senators must reside in the state they represent. Today, there are 435 members of the House of Representatives (14 from Georgia) and 100 members of the Senate (two per state). According to the Constitution, the president must be 35 years of age, a natural-born U.S. citizen, and a resident of the U.S. for the previous 14 years. The president serves a four-year term of office and is not limited to any specific number of terms. Presidents for nearly 150 years served a maximum of two terms not because of any constitutional regulation, but rather because it was the precedent set by George Washington. Franklin D. Roosevelt was the only president to break with tradition having been elected to four terms of office—1932, 1936, 1940, and 1944—during the Great Depression and World War II. In 1951, the Twenty-Second Amendment was ratified, which now limits the president to two terms of office. The framers were not common men. Rather, they were the elite, the powerful, the educated, the aristocrats of the new nation. As such, they were a bit wary of giving too much power to the common people, and they structured the presidential election procedure uniquely. We do not directly elect the president as we directly elect members of Congress. Rather, when we vote for president, we are technically voting for a “slate of electors” who, in turn, several weeks after the general election, vote for the president. Therefore, the true mechanism for choosing the president is this Electoral College. Electors are chosen by their respective political parties to serve this role. Representation in the Electoral College is based largely upon The U.S. Constitution – 21 – population. A state’s total number of electors is the sum total of its Representatives plus its Senators (Kimberling, 1992). For example, in Georgia, this number is 16. Therefore, states with more people have more electors in the college. Today, the total number of electors is 538–which is the total number of Representatives (435) plus the total number of Senators (100) plus three representing the District of Columbia. In all states except Maine and Nebraska, the candidate who wins the majority of the popular vote receives all that state’s electors. For example, if candidate A receives 60% of the popular vote in a state and candidate B receives 40%, candidate A would receive 100% of the electors. To win the presidential election, a candidate must receive a majority (270) of the votes (Kimberling, 1992). Therefore, candidates for the presidency are wise to gear their elections toward those states with high numbers of electoral votes (CA, TX, NY, FL, IL, PA, OH, GA, etc.). Because of the Electoral College, the person receiving the majority of electoral votes (not popular votes in the general election) becomes the president. In fact, four times, most recently in 2016, the “victor” actually received fewer popular votes than the “loser,” but received more votes where it counted—the Electoral College. While no federal rule requires electors to choose the winner of their state’s popular vote, many states have such rules. However, no so-called “faithless elector” has ever been punished. There have been a few such electors in recent elections, and none have been decisive. They have always been isolated protest votes. Impeachment is the formal means of removing the president from office. It is a two-step process involving both houses of Congress. First, the House of Representatives conducts an investigation to determine if the president has committed some sort of crime. If so, “Articles of Impeachment” can be voted against the president, requiring a simple majority vote. The “Articles” then go to the Senate for the formal trial of the president. Here, the Senators serve as the jury, and the Chief Justice of the Supreme The Basics of American Government – 22 – Court oversees the proceedings. For presidents to be convicted and forced to leave office, they must be found guilty of “High Crimes and Misdemeanors,” requiring a super-majority (two-thirds) vote. Two presidents, Andrew Johnson and Bill Clinton, have had Articles of Impeachment voted against them, but neither was convicted of High Crimes and Misdemeanors. Article III established the Judicial Branch of government, or the courts. An independent judiciary had never existed, so Article III is very vague. In it, the framers described the parameters of the highest court in the land—the Supreme Court. Today, the Court has nine members. However, the Constitution does not require a specific number of justices. The most controversial aspect of this Article is the notion that federal judges receive life appointments, serving as long as they are deemed to be in good standing. Article V of the Constitution describes the formal amendment process. The U.S. Constitution is amended infrequently, only 27 times in total. The first ten amendments serve as the Bill of Rights (adopted in 1791). The process of both proposing and ratifying an amendment is onerous and requires more than a majority vote. There are two methods of proposing an amendment to the Constitution. The more common method is by a two-thirds vote in both houses of the U.S. Congress. The less common method is at the request of twothirds of the state legislatures. With regard to ratifying a proposed amendment, the more common method is by a three-quarters vote of all state legislatures. The less common method of ratification is by three-quarters of the states in a special convention. With respect to both the proposal and ratification process, a relatively small minority can block the will of the majority, which has resulted in only 17 amendments being ratified since 1791. Slavery The word “slave” or “slavery” does not appear in the Constitution, yet the framers were very aware of the controversial The U.S. Constitution – 23 – nature of the institution. Slavery is addressed indirectly, most notably by the Three-Fifths Compromise. Article I, Section Two, Paragraph Three of the Constitution describes how slaves would be counted as three-fifths of a person in terms of representation, when determining the total number of persons in a state. The slaveholding states of the south argued that slaves should be counted in terms of representation, resulting in more representatives in the House for those states. The non-slave-holding states contended that they should not count as “persons” because they were considered property. The resulting compromise was that slaves would be counted as three-fifths of a person. Many framers were slaveholders, including Washington and Jefferson. Others were abolitionists who abhorred the practice and desired to see it ended immediately. Most, however, understood that ending slavery would be difficult, as the many southern states depended upon it economically. Had slavery been outlawed in the Constitution, it would probably not have been ratified, because many southern states would have withdrawn their support. Valid arguments can be made saying that the framers should have outlawed slavery at the founding. The counterargument that ending slavery at that time would have resulted in the Constitution not being ratified is also valid. There are no simple or authoritative answers on this subject. Controversy Enumerated v. Implied Powers The framers understood that they could not possibly predict the challenges that the Constitution would have to face, yet they wanted to create a document that would endure and be applicable for future generations. To that end, they crafted a purposefully ambiguous product that could be molded, changed, and applied somewhat differently by future policymakers. One mechanism they included to allow for this constitutional evolution is found in Article The Basics of American Government – 24 – I. Article I, Section Eight of the U.S. Constitution is referred to as the Necessary and Proper Clause. This clause, sometimes referred to as the “Elastic Clause,” allows for the future expansion and evolution of the power of the federal government. It says Congress has the power “[t]o make all Laws which shall be necessary and proper for carrying into the Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This relatively simple provision, which leaves open-ended the power of the federal government, has sparked a great deal of controversy about the limits of its authority. At the time of the founding, and even today, many argued that the powers of the federal government should be limited to those specifically listed, or enumerated, in the Constitution—no more, no less—and that the powers of the federal government are not openended. Rather, they argued, the states should possess those powers not listed in the Constitution. These states’ rights advocates also looked to the Constitution and the Bill of Rights to substantiate their case. The Tenth Amendment to the Constitution is referred to as the Reserved Powers Clause, which simply states: “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.” These two clauses, one found in the Constitution and one found in the Bill of Rights, are contradictory in nature. The Necessary and Proper Clause assumes that the federal government possesses implied powers beyond what are listed in the Constitution. Conversely, the Reserved Powers Clause assumes that the federal government possesses enumerated powers, or those listed in the Constitution, with all others being given or reserved to the states. This ambiguity has caused a great deal of debate, confusion, conflict, and even rebellion over the past 200 years, resulting in events leading to the Civil War and conflicts between the states and the federal government ever since. What did the framers actually intend? It is impossible to know exactly. They purposely crafted The U.S. Constitution – 25 – and envisioned a flexible document that is open to interpretation by future generations. However, they also understood the need for strong state governments. Federalists v. Anti-Federalists The ratification of the Constitution was not a foregone conclusion. Many were opposed to its passage. Mostly, they were fearful of a tyrannical national government that would take all power away from the states, causing them to wither away. These antiConstitution forces were largely fearful of what was referred to at the time as consolidation of power, or the notion that all governmental power would be concentrated in one level of government (the national level in this case). Rather, they contended, power should be decentralized across two levels of government—the national and the state—leaving the states with considerable power and authority. The forces in favor of the Constitution were dubbed Federalists, while those opposed to it were called Anti-Federalists. The Federalists included such dignitaries as James Madison, John Adams, Alexander Hamilton, and George Washington—those who had attended the Constitutional Convention and played a large part in the crafting of the document. The Federalists saw the need for a strong, energetic, and efficient national government that would unify the new republic as one nation. They assumed that power would be somewhat consolidated under the national government, but realized that states would play a major role in this power-sharing arrangement. The Federalist base of support was much stronger in New England and the Middle Atlantic States, in the cities, and among intellectuals, merchants, and scholars. Conversely, the AntiFederalists believed that the states should remain strong, that they be at least co-equal players with the national government, and that power should be dispersed among these levels of government. The Anti-Federalist base of support was stronger in rural areas, the south, and among farmers, frontier settlers, and individualists. The Basics of American Government – 26 – Case Study: Marketing the Constitution: The Federalist Once the Constitution was written, it needed to be ratified by the states. To become the law of the land, nine of the thirteen states had to support it. To ensure passage, the framers needed to explain to the states, and more importantly, to the people, why the Constitution was in their best interests. The primary method they chose to sell the Constitution to the people was through a series of periodic essays published in newspapers throughout the states, laying out in simple terms the basic provisions of the Constitution. These 85 essays, collectively called The Federalist, appeared in newspapers and were widely circulated in 1787-88. Not only did they explain how the Constitution was structured and how it would function, the essays provided insight into the framers’ philosophical and theoretical reasoning when crafting the document. Three men wrote the 85 essays, James Madison, Alexander Hamilton, and John Jay. Madison, and Hamilton penned the vast majority. Overall, Madison’s essays are probably the most famous, because he laid out a commonsense, nuanced, and balanced argument, which respectfully addressed the concerns of the Anti-Federalists. Hamilton, on the other hand, was more direct and less conciliatory towards the Anti-Federalists. The framers reasoned that if people could read these essays and understand their reasoning, they would ultimately support the new Constitution. The Anti-Federalists wrote a number of rebuttal essays that in many cases provide excellent arguments against the Constitution. However, because the Constitution ultimately is ratified and the Federalists “won,” the Anti-Federalists’ essays have been largely marginalized or forgotten. Throughout this yearand-a-half, Madison and Hamilton would publish periodic essays under the pen-name “Publius” and various Anti-Federalist writers, many of whom would also use a pen-name, would respond with a counter-essay. What follows is an analysis of some of the most The U.S. Constitution – 27 – famous essays of The Federalist—those that lay out the argument of the Federalists best. Collectively, the 85 papers that comprise The Federalist are probably the third-most important set of documents of the founding era, behind only The Declaration of Independence and the Constitution. These three pieces comprise the basis of American political philosophy. Federalist #10, written by James Madison, is probably the most famous and influential of all the essays. It best summarizes the Federalists’ collective argument in favor of the Constitution. In this essay, Madison primarily addresses the issue of factions, what we would call special interests or interest groups, or even political parties today. With incredible foresight into the development of the modern American political system, Madison explained that if a strong, energetic government was not established, factions would dominate the system, alienating the people and negatively influencing the crafting of legislation and public policy (which, many today would argue, is exactly what occurred). Madison (2001) defined factions as “. . . a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interest of the community” (p. 92). Madison explained that factions would always exist, but government should ensure that their effects are tempered or diminished. To accomplish this end, he reasoned, a strong national government, a republic, must be established to safeguard the liberties and will of the people. He further argued that too much freedom and liberty can result in too much faction: “Liberty is to faction what air is to fire” (Madison, 2001, p. 92). Madison further explained that the best system of government to limit the power and influence of factions is a republic, a representative democracy. Echoing Rousseau and others, Madison understood that democracy was predisposed to breeding faction. However, he reasoned, the United States, with its large territory and The Basics of American Government – 28 – population, was uniquely situated and comprised to limit factions. Factions were inevitable, but could be marginalized in a large, vast republic. Madison envisioned a system whereby the people would choose the best, brightest, and most capable members of society to represent them in government. He, in fact, advocated for a “natural” aristocracy that would represent the people in government. Like the rest of the framers, he was a well-educated aristocrat who felt that some were better fit to lead than others. Throughout #10, and in other essays, the authors refer to “men of fit character” who would govern in the best interests of the people. Federalist #39, also penned by Madison, addresses the primary concern of the Anti-Federalists—that the proposed Constitution would result in a consolidated government whereby all power would be concentrated in the national government, and the states would lose all or significant power, causing them to wither away. Madison does concede that the states would lose some power, but would remain very important partners in this unique power-sharing arrangement that the Constitution proposes, where there are multiple levels of sovereign government existing at the same time, which is the definition of federalism. Today, we use the terms “federal” and “national” almost interchangeably. To Madison, they were different. In explaining how the states would retain power under the Constitution, he made a detailed distinction between “federal” and “national.” Madison explained that the government would function simultaneously as federal and national in nature. When governmental authority flowed from the states, it was federal in nature. However, when governmental authority flowed directly from the people, it was national in nature. Therefore, the proposed Constitution viewed its power as derived from sovereign states individually as well as from the American people collectively. For one of the first times, the nation was beginning to view itself as one, unified entity. Most of the essays written by Hamilton are not nearly as delicate as Madison’s. In fact, at times, they tend to even contradict Madison. The U.S. Constitution – 29 – In Federalist #15, Hamilton also addresses the issue of consolidation of power and is not nearly as conciliatory to states’ rights advocates, explaining that a powerful national government is the best guarantee of national progress and health as a nation. He even refers to the Articles (which guaranteed the strength and power of the states) as a “national humiliation.” In this essay, Hamilton argues that the fledgling nation needs to be grounded on firm financial footing and possess an ability to defend itself, something that can only occur through the establishment and leadership of a strong national government. He argues that the states had proven to be ineffective in either of these areas. Hamilton (2001) also argues strongly for consolidation, even at the expense of state power: “. . . we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens—the only proper objects of government” (p. 111). Here, Hamilton is advocating that the government rightly serves all Americans as individual citizens of one nation, not the interests of the states. Until then, he reasoned, the new nation would remain financially insolvent, fractured, and ripe for foreign invasion. A Civic Engagement Challenge: Draft a Constitution Are there aspects to the Constitution that do not seem just or fair? Did the framers err when drafting certain articles that left the document open to interpretation and speculation that did not mirror their intent? Would you like to see certain amendments made to the Constitution? Here’s your chance. Break into groups of five or so students and draft your own Constitution for a nation you have created. Be sure to include the following: a brief description of your society or nation, a Preamble or “mission statement,” and 10-12 realistic, detailed, specific changes and/or provisions your group would like to seen enacted. Your document can be focused at The Basics of American Government – 30 – a national, state, community, or even campus level. After you have finished, trade papers with another group to see what they have crafted. Be serious, but have fun!