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Ratification: The U.S. Constitution is Born

Ratification: The U.S. Constitution is Born



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Ratification was the process by which the 13 states studied, debated, sometimes temporarily rejected and all finally approved the newly drafted Constitution. The approval of nine states was needed to put the new government into operation, but as a practical matter the large states of Virginia and New York were crucial if the new scheme were to have any hope of success.

From today’s vantage point, it seems easy to assume the approval of a new form of government. However, such was not necessarily the case during 1787 and 1788. The public appears to have been about evenly split at the beginning of the ratification debate, and such notable figures as Samuel Adams, Thomas Paine and Patrick Henry were vocal opponents.

The contest in New York appeared to be dominated by the Anti-Federalist forces under George Clinton that were opposed to ratification of the Constitution. The pro-ratification forces, the Federalists, were led by Alexander Hamilton. In a masterful display of political skill, Hamilton overcame a two-to-one advantage by the Anti-Federalists. The final vote was 30-27 for approval in the New York convention. During the debate in New York, Hamilton joined with James Madison and John Jay in writing The Federalist, a series of essays that analyzed the Constitution and countered the arguments against it.

The contest was also spirited in Virginia, where the anti-Federalist side was taken up by Patrick Henry and the Federalist side by James Madison, the Father of the Constitution. Ratification was achieved in Virginia only after it was decided to add a Bill of Rights to the Constitution.

Perhaps nothing was more helpful to the Federalist cause than the support of the two most prominent Americans, Benjamin Franklin and George Washington.

In December 1787, Delaware became the first state to ratify the document. On June 21, 1788, New Hampshire ratified the constitution, giving it the theoretically sufficient endorsement of nine states, but New York and Virginia had yet to agree. Without them, the federal government couldn't function. Four days later, Virginia signed on and after another month, so did New York.Two states, North Carolina and Rhode Island, rejected the Constitution, but later reversed their votes after the other states had given their approval. Their ratifications came after Washington's first inauguration. Rhode Island held out until 1790, when ratification passed 32 to 30.


Timeline of drafting and ratification of the United States Constitution

The drafting of the Constitution of the United States began on May 25, 1787, when the Constitutional Convention met for the first time with a quorum at the Pennsylvania State House (now Independence Hall) in Philadelphia, Pennsylvania to revise the Articles of Confederation, and ended on September 17, 1787, the day the Constitution drafted by the convention's delegates to replace the Articles was adopted and signed. The ratification process for the Constitution began that day, and ended when the final state, Rhode Island, ratified it on May 29, 1790. In addition to key events during the Constitutional Convention and afterward while the Constitution was put before the states for their ratification, this timeline includes important events that occurred during the run-up to the convention and during the nation's transition from government under the Articles of Confederation to government under the Constitution, and concludes with the unique ratification vote of Vermont, which at the time was a sovereign state outside the Union. The time span covered is 5 years, 9 months, from March 25, 1785 to January 10, 1791.


Documentary History of the Ratification of the Constitution

The signing of the U.S. Constitution on 17 September 1787 was a milestone in creating a government for the recently independent United States. However, the act of signing itself did not create a government. Nor did it bring the new Constitution into force. The closing of the Constitutional Convention was the beginning of a long public debate during which citizens, represented in state ratifying conventions, read, debated, and ultimately voted to ratify the Constitution. The process of ratification produced an invaluable record of debates and commentaries that reveal how eighteenth-century Americans understood the Constitution and how they assessed its strengths and weaknesses.

Beginning with the publication of the first volume of The Documentary History of the Ratification of the Constitution (DHRC) in 1976, DHRC editors at CSAC have been publishing the definitive collection of primary source material related to the ratification debates. Editors draw on a body of more than 70,000 documents, including official materials, such as records of town and county meetings, executive records, legislative proceedings, convention journals and debates, petitions, recommended amendments, forms of ratification, and financial records personal papers, such as letters, memoirs, diaries, and poetry diplomatic correspondence and printed primary documents from newspapers, broadsides, and pamphlets. These documents have been transcribed, annotated, and published in thirty-four volumes to date.

DHRC volumes have been used extensively by historians and political scientists, cited by the Supreme Court of the United States and other federal courts, and increasingly adapted for use in classrooms at all educational levels. The volumes are essential reading for anyone wanting to understand the Constitution in historical context.

DHRC volumes are available at no cost through the University of Wisconsin Libraries’ Digital Collections. Digital volumes will be available two years after they are published in book form. Online access is also available by subscription through Rotunda, a digital publications collection at the University of Virginia Press. Bound volumes are available at most research libraries and can be purchased from the Wisconsin Historical Society or from our online bookstore.

The following is a complete list of DHRC volumes that you can browse on University of Wisconsin Libraries’ Digital Collections.

Vol. I Constitutional Documents and Records, 1776–1787

Ratification of the Constitution by the States
Vol. II Pennsylvania
Vol. III Delaware * New Jersey * Georgia * Connecticut
Vols. IV–VII Massachusetts (4 vols.)
Vols. VIII–X Virginia (3 vols.)
Vols. XI–XII Maryland (2 vols.)

Vols. XIII–XVIII Commentaries on the Constitution: Public and Private (6 vols.)

Ratification of the Constitution by the States (continued)
Vol. XIX–XXIII New York (5 vols.)
Vols. XXIV–XXVI Rhode Island (3 vols.)
Vol. XXVII South Carolina
Vol. XXVIII New Hampshire
Vol. XXIX Confederation Congress and Vermont
Vols. XXX–XXXI North Carolina (2 vols.)
Vols. XXXII–XXXIV Pennsylvania Supplemental Documents (3 vols.)

Cumulative Index to Volumes I–XXXIV
Vols. XXXV–XXXVI (2 vols. forthcoming 2021)

The Bill of Rights
Vol. XXXVII Origins
Vols. XXXVIII–XLII (forthcoming)


Introduction

The 14th Amendment to the Constitution was ratified on July 9, 1868, and granted citizenship to &ldquoall persons born or naturalized in the United States,&rdquo which included former slaves recently freed. In addition, it forbids states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of the laws.&rdquo By directly mentioning the role of the states, the 14th Amendment greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment.


Summary

Anti-Federalists objected to the power the Constitution gave the federal government and the absence of a bill of rights to protect individual liberties. The Federalists countered that a strong government was necessary to lead the new nation and promised to add a bill of rights to the Constitution. The Federalist Papers, in particular, argued in favor of ratification and sought to convince people that the new government would not become tyrannical. Finally, in June 1788, New Hampshire became the ninth state to approve the Constitution, making it the law of the land. The large and prosperous states of Virginia and New York followed shortly thereafter, and the remaining states joined as well.


16c. The Ratification Process: State by State


The man behind the signature: This portrait of John Hancock was painted by John Singleton Copley.

The ratification process started when the Congress turned the Constitution over to the state legislatures for consideration through specially elected state conventions of the people. Five state conventions voted to approve the Constitution almost immediately (December 1787 to January 1788) and in all of them the vote was unanimous (Delaware, New Jersey, Georgia) or lopsided (Pennsylvania, Connecticut). Clearly, the well-organized Federalists began the contest in strong shape as they rapidly secured five of the nine states needed to make the Constitution law. The Constitution seemed to have easy, broad, and popular support.

However, a closer look at who ratified the Constitution in these early states and how it was done indicates that the contest was much closer than might appear at first glance. Four of the five states to first ratify were small states that stood to benefit from a strong national government that could restrain abuses by their larger neighbors.


This copy of the Constitution was used by delegates to the New York ratification convention.

The process in Pennsylvania, the one large early ratifier, was nothing less than corrupt. The Pennsylvania state assembly was about to have its term come to an end, and had begun to consider calling a special convention on the Constitution, even before Congress had forwarded it to the states. Antifederalists in the state assembly tried to block this move by refusing to attend the last two days of the session, since without them there would not be enough members present for the state legislature to make a binding legal decision. As a result extraordinarily coercive measures were taken to force Antifederalists to attend. Antifederalists were found at their boarding house and then dragged through the streets of Philadelphia and deposited in the Pennsylvania State House with the doors locked behind them. The presence of these Antifederalists against their will, created the required number of members to allow a special convention to be called in the state, which eventually voted 46 to 23 to accept the Constitution.

The first real test of the Constitution in an influential state with both sides prepared for the contest came in Massachusetts in January 1788. Here influential older Patriots like Governor John Hancock and Sam Adams led the Antifederalists. Further, the rural western part of the state, where Shays' Rebellion had occurred the previous year, was an Antifederalist stronghold. A bitterly divided month-long debate ensued that ended with a close vote (187-168) in favor of the Constitution. Crucial to this narrow victory was the strong support of artisans who favored the new commercial powers of the proposed central government that might raise tariffs (taxes) on cheap British imports that threatened their livelihood. The Federalists' narrow victory in Massachusetts rested on a cross-class alliance between elite nationalists and urban workingmen.


A revolutionary leader in Massachusetts, Samuel Adams founded Bowdoin College when he was governor of Massachusetts. At the time, Maine (where Bowdoin College is located) was part of Massachusetts.

The Massachusetts vote also included an innovation with broad significance. John Hancock who shifted his initial opposition to the Constitution led the move toward ratification. Satisfied that certain amendments protecting individual rights were going to be considered by the first new Congress that would meet should the Constitution become law. This compromise helped carry the narrow victory in Massachusetts and was adopted by every subsequent state convention to ratify (except Maryland).

By the spring conventions in the required nine states had ratified, and the Constitution could become law. But with powerful, populous, and highly divided Virginia and New York yet to vote, the legitimacy of the new national system had not yet been fully resolved.


Today in History: The U.S. Constitution is Ratified (1788)

The United States Constitution is considered one of the most important documents in American history, and for good reason. Without the Constitution, the federal government would have little right to govern the states at all.

As a legal document, the United States constitution was very controversial, and has continued to be a source of almost constant argument since its ratification on June 21, 1788. By 1786, the majority of the new country&rsquos leaders knew that the Articles of Confederation, which were the governing force of the country after the US declared independence, were falling apart at the seams. The Articles did not allow for federal authority over foreign trade, interstate trade, currency or taxes. In May 1787, the Constitutional Convention was convened in Philadelphia, Pennsylvania after the congress endorsed a plan to draft a codified constitution.

George Washington led the Constitutional Convention in 1787. History Channel

It took three months, and a number of compromises, but on September 17, 1797, the US Constitution was signed by 38 of the 41 delegates that had been sent by the states to construct a new constitution. The document they created, structured a strong federal government, with a system of checks and balances between three different branches of government. The document was then sent to each of the 13 states, as it wouldn&rsquot be ratified until nine of the states ratified it.

That happened when on June 21, 1788, New Hampshire became the ninth state to ratify the Constitution. The ratification process was a long, drawn out process for many of the states. In fact, it would be 1790 before the last state officially ratified the US Constitution, despite being the document that formed the US Government on March 4, 1789.

Delaware, Pennsylvania, New Jersey, Georgia and Connecticut all ratified the document very quickly (December of 1787). The rest of the states all had a rougher time of ratifying the Constitution. Massachusetts opposed ratifying the document because it didn&rsquot have a section guaranteeing personal or state rights (something that would be added later with the first 10 amendments to the Constitution, also known as the Bill of Rights). The only reason Massachusetts agreed to ratify the constitution at all was that there was a compromise struck that guaranteed the bill of protections would be proposed immediately upon the Constitution going into effect. Other states (Maryland and South Carolina) also ratified the Constitution soon after the compromise with Massachusetts was struck.

Constitutional Convention. Wikipedia

After New Hampshire ratified the document, New York and Virginia both followed. On September 25, 1789 the first United States Congress under the new Constitution adopted 12 amendments that would be called the Bill of Rights. Only 10 of them would be ratified in 1791. Rhode Island would not ratify the Constitution until 1790, and only then because the federal government threatened to shut down all commercial relations if they failed to do so.

If for no other reason, the United States Constitution is remarkable because of its longevity. It is the oldest written constitution in the world, and is the benchmark that several other countries have used when writing their own governing documents. It isn&rsquot perfect of course, as noted by the 27 amendments that have been ratified and attached to the original document. It has been called arcane in recent years, but there haven&rsquot been any real attempts to replace it. Despite the constant controversy and reimagining behind the interpretation of the document, it has worked for over 230 years.


Contents

Declaration of Independence Edit

On June 4, 1776, a resolution was introduced in the Second Continental Congress declaring the union with Great Britain to be dissolved, proposing the formation of foreign alliances, and suggesting the drafting of a plan of confederation to be submitted to the respective states. Independence was declared on July 4, 1776 the preparation of a plan of confederation was postponed. Although the Declaration was a statement of principles, it did not create a government or even a framework for how politics would be carried out. It was the Articles of Confederation that provided the necessary structure to the new nation during and after the American Revolution. The Declaration, however, did set forth the ideas of natural rights and the social contract that would help form the foundation of constitutional government.

The era of the Declaration of Independence is sometimes called the "Continental Congress" period. John Adams famously estimated as many as one-third of those resident in the original thirteen colonies were patriots. Scholars such as Gordon Wood describe how Americans were caught up in the Revolutionary fervor and excitement of creating governments, societies, a new nation on the face of the earth by rational choice as Thomas Paine declared in Common Sense.

Republican government and personal liberty for "the people" were to overspread the New World continents and to last forever, a gift to posterity. These goals were influenced by Enlightenment philosophy. The adherents to this cause seized on English Whig political philosophy as described by historian Forrest McDonald as justification for most of their changes to received colonial charters and traditions. It was rooted in opposition to monarchy they saw as venal and corrupting to the "permanent interests of the people."

To these partisans, voting was the only permanent defense of the people. Elected terms for legislature were cut to one year, for Virginia's Governor, one year without re-election. Property requirements for suffrage for men were reduced to taxes on their tools in some states. Free blacks in New York could vote if they owned enough property. New Hampshire was thinking of abolishing all voting requirements for men except residency and religion. New Jersey let women vote. In some states, senators were now elected by the same voters as the larger electorate for the House, and even judges were elected to one-year terms.

These "radical Whigs" were called the people "out-of-doors." They distrusted not only royal authority, but any small, secretive group as being unrepublican. Crowds of men and women massed at the steps of rural Court Houses during market-militia-court days. Shays' Rebellion (1786–87) is a famous example. Urban riots began by the out-of-doors rallies on the steps of an oppressive government official with speakers such as members of the Sons of Liberty holding forth in the "people's "committees" until some action was decided upon, including hanging his effigy outside a bedroom window, or looting and burning down the offending tyrant's home.

First and Second Continental Congresses Edit

The First Continental Congress met from September 5 to October 26, 1774. It agreed that the states should impose an economic boycott on British trade, and drew up a petition to King George III, pleading for redress of their grievances and repeal of the Intolerable Acts. It did not propose independence or a separate government for the states.

The Second Continental Congress convened on May 10, 1775, and functioned as a de facto national government at the outset of the Revolutionary War. Beginning in 1777, the substantial powers assumed by Congress "made the league of states as cohesive and strong as any similar sort of republican confederation in history". [1] The process created the United States "by the people in collectivity, rather than by the individual states", because only four states had constitutions at the time of the Declaration of Independence in 1776, and three of those were provisional.

The Supreme Court in Penhallow v. Doane's Administrators (1795), and again in Ware v. Hylton (1796), ruled on the federal government's powers prior to the adoption of the U.S. Constitution in 1788. It said that Congress exercised powers derived from the people, expressly conferred through the medium of state conventions or legislatures, and, once exercised, those powers were "impliedly ratified by the acquiescence and obedience of the people". [2]

Confederation Period Edit

The Articles of Confederation was approved by the Second Continental Congress on November 15, 1777, and sent to the states for ratification. It came into force on March 1, 1781, after being ratified by all 13 states. Over the previous four years it had been used by Congress as a "working document" to administer the early United States government and win the Revolutionary War. and secure

Lasting successes under the Articles of Confederation included the Treaty of Paris with Britain and the Land Ordinance of 1785, whereby Congress promised settlers west of the Appalachian Mountains full citizenship and eventual statehood. [3] Some historians characterize this period from 1781 to 1789 as weakness, dissension, and turmoil. [4] Other scholars view the evidence as reflecting an underlying stability and prosperity. [5] But the returning of prosperity in some areas did not slow the growth of domestic and foreign problems. Nationalists saw the confederation's central government as not strong enough to establish a sound financial system, regulate trade, enforce treaties, or go to war when needed. [6]

The Congress of the Confederation, as defined in the Articles of Confederation, was the sole organ of the national government there was no national court to interpret laws nor an executive branch to enforce them. Governmental functions, including declarations of war and calls for an army, were voluntarily supported by each state, in full, partly, or not at all. [6]

The newly independent states, separated from Britain, no longer received favored treatment at British ports. The British refused to negotiate a commercial treaty in 1785 because the individual American states would not be bound by it. Congress could not act directly upon the States nor upon individuals. It had no authority to regulate foreign or interstate commerce. Every act of government was left to the individual States. Each state levied taxes and tariffs on other states at will, which invited retaliation. Congress could vote itself mediator and judge in state disputes, but states did not have to accept its decisions. [6]

The weak central government could not back its policies with military strength, embarrassing it in foreign affairs. The British refused to withdraw their troops from the forts and trading posts in the new nation's Northwest Territory, as they had agreed to do in the Treaty of Paris of 1783. British officers on the northern boundaries and Spanish officers to the south supplied arms to Native American tribes, allowing them to attack American settlers. The Spanish refused to allow western American farmers to use their port of New Orleans to ship produce. [6]

Revenues were requisitioned by Congressional petition to each state. None paid what they were asked sometimes some paid nothing. Congress appealed to the thirteen states for an amendment to the Articles to tax enough to pay the public debt as principal came due. Twelve states agreed, Rhode Island did not, so it failed. [7] The Articles required super majorities. Amendment proposals to states required ratification by all thirteen states, all important legislation needed 70% approval, at least nine states. Repeatedly, one or two states defeated legislative proposals of major importance. [6]

Without taxes the government could not pay its debt. Seven of the thirteen states printed large quantities of its own paper money, backed by gold, land, or nothing, so there was no fair exchange rate among them. State courts required state creditors to accept payments at face value with a fraction of real purchase power. The same legislation that these states used to wipe out the Revolutionary debt to patriots was used to pay off promised veteran pensions. The measures were popular because they helped both small farmers and plantation owners pay off their debts. [8]

The Massachusetts legislature was one of the five against paper money. It imposed a tightly limited currency and high taxes. Without paper money veterans without cash lost their farms for back taxes. This triggered Shays' Rebellion to stop tax collectors and close the courts. Troops quickly suppressed the rebellion, but nationalists like George Washington warned, "There are combustibles in every state which a spark might set fire to." [9]

Mount Vernon Conference Edit

An important milestone in interstate cooperation outside the framework of the Articles of Confederation occurred in March 1785, when delegates representing Maryland and Virginia met in Virginia, to address navigational rights in the states's common waterways. [10] [a] On March 28, 1785, the group drew up a thirteen-point proposal to govern the two states' rights on the Potomac River, Pocomoke River, and Chesapeake Bay. [10] Known as the Mount Vernon Compact (formally titled the "Compact of 1785"), [11] this agreement not only covered tidewater navigation but also extended to issues such as toll duties, commerce regulations, fishing rights, and debt collection. [12] Ratified by the legislatures of both states, the compact, which is still in force, helped set a precedent for later meetings between states for discussions into areas of mutual concern. [10] [b]

The conference's success encouraged James Madison to introduce a proposal in the Virginia General Assembly for further debate of interstate issues. With Maryland's agreement, on January 21, 1786, Virginia invited all the states to attend another interstate meeting later that year in Annapolis, Maryland, to discuss the trade barriers between the various states. [13]

Constitutional reforms considered Edit

The Congress of the Confederation received a report on August 7, 1786 from a twelve-member "Grand Committee", appointed to develop and present "such amendments to the Confederation, and such resolutions as it may be necessary to recommend to the several states, for the purpose of obtaining from them such powers as will render the federal government adequate to" its declared purposes. Seven amendments to the Articles of Confederation were proposed. Under these reforms, Congress would gain "sole and exclusive" power to regulate trade. States could not favor foreigners over citizens. Tax bills would require 70% vote, public debt 85%, not 100%. Congress could charge states a late payment penalty fee. A state withholding troops would be charged for them, plus a penalty. If a state did not pay, Congress could collect directly from its cities and counties. A state payment on another's requisition would earn annual 6%. There would have been a national court of seven. No-shows at Congress would have been banned from any U.S. or state office. [14] These proposals were, however, sent back to committee without a vote and were not taken up again. [15]

Annapolis Convention Edit

The Annapolis Convention, formally titled "A Meeting of Commissioners to Remedy Defects of the Federal Government", convened at George Mann's Tavern [16] on September 11, 1786. Delegates from five states gathered to discuss ways to facilitate commerce between the states and establish standard rules and regulations. At the time, each state was largely independent from the others and the national government had no authority in these matters. [17]

Appointed delegates from four states either arrived too late to participate or otherwise decided not attend. Because so few states were present, delegates did not deem "it advisable to proceed on the business of their mission." However, they did adopt a report calling for another convention of the states to discuss possible improvements to the Articles of Confederation. They desired that Constitutional Convention take place in Philadelphia in the summer of 1787. [18]

Legislatures of seven states—Virginia, New Jersey, Pennsylvania, North Carolina, New Hampshire, Delaware, and Georgia—immediately approved and appointed their delegations. New York and others hesitated thinking that only the Continental Congress could propose amendments to the Articles. [ citation needed ] Congress then called the convention at Philadelphia. The "Federal Constitution" was to be changed to meet the requirements of good government and "the preservation of the Union". Congress would then approve what measures it allowed, then the state legislatures would unanimously confirm whatever changes of those were to take effect.

Twelve state legislatures, Rhode Island being the only exception, sent delegates to convene at Philadelphia in May 1787. [19] While the resolution calling the Convention specified that its purpose was to propose amendments to the Articles, through discussion and debate it became clear by mid-June that the Convention would propose a Constitution with a fundamentally new design. [20]

Sessions Edit

The Congress of the Confederation endorsed a plan to revise the Articles of Confederation on February 21, 1787. [19] It called on each state legislature to send delegates to a convention "'for the sole and express purpose of revising the Articles of Confederation' in ways that, when approved by Congress and the states, would 'render the federal constitution adequate to the exigencies of government and the preservation of the Union.'" [21]

To amend the Articles into a workable government, 74 delegates from the twelve states were named by their state legislatures 55 showed up, and 39 eventually signed. [22] On May 3, eleven days early, James Madison arrived to Philadelphia and met with James Wilson of the Pennsylvania delegation to plan strategy. Madison outlined his plan in letters: (1) State legislatures shall each send delegates instead of using members of the Congress of the Confederation. (2) The Convention will reach agreement with signatures from every state. (3) The Congress of the Confederation will approve it and forward it to the state legislatures. (4) The state legislatures independently call one-time conventions to ratify it, using delegates selected via each state's various rules of suffrage. The Convention was to be "merely advisory" to the people voting in each state. [c]

Convening Edit

George Washington arrived on time, Sunday, the day before the scheduled opening. [d] For the entire duration of the Convention, Washington was a guest at the home of Robert Morris, Congress' financier for the American Revolution and a Pennsylvania delegate. Morris entertained the delegates lavishly. William Jackson, in two years to be the president of the Society of the Cincinnati, had been Morris' agent in England for a time and he won election as a non-delegate to be the convention secretary.

The convention was scheduled to open May 14, but only Pennsylvania and Virginia delegations were present. The Convention was postponed until a quorum of seven states gathered on Friday the 25th. [e] George Washington was elected the Convention president, and Chancellor (judge) George Wythe (Va) was chosen Chair of the Rules Committee. The rules of the Convention were published the following Monday. [f]

Nathaniel Gorham (MA) was elected Chair of the "Committee of the Whole". These were the same delegates in the same room, but they could use informal rules for the interconnected provisions in the draft articles to be made, remade and reconnected as the order of business proceeded. The Convention officials and adopted procedures were in place before the arrival of nationalist opponents such as John Lansing (NY) and Luther Martin (MD). [g] By the end of May, the stage was set.

The Constitutional Convention voted to keep the debates secret so that the delegates could speak freely, negotiate, bargain, compromise and change. Yet the proposed Constitution as reported from the Convention was an "innovation", the most dismissive epithet a politician could use to condemn any new proposal. It promised a fundamental change from the old confederation into a new, consolidated yet federal government. The accepted secrecy of usual affairs conducted in regular order did not apply. It became a major issue in the very public debates leading up to the crowd-filled ratification conventions. [h]

Despite the public outcry against secrecy among its critics, the delegates continued in positions of public trust. State legislatures chose ten Convention delegates of their 33 total for the Constitutional Convention that September. [29]

Agenda Edit

Every few days, new delegates arrived, happily noted in Madison's Journal. But as the Convention went on, individual delegate coming and going meant that a state's vote could change with the change of delegation composition. The volatility added to the inherent difficulties, making for an "ever-present danger that the Convention might dissolve and the entire project be abandoned." [30]

Although twelve states sent delegations, there were never more than eleven represented in the floor debates, often fewer. State delegations absented themselves at votes different times of day. There was no minimum for a state delegation one would do. Daily sessions would have thirty members present. Members came and went on public and personal business. The Congress of the Confederation was meeting at the same time, so members would absent themselves to New York City on Congressional business for days and weeks at a time. [31]

But the work before them was continuous, even if attendance was not. The Convention resolved itself into a "Committee of the Whole", and could remain so for days. It was informal, votes could be taken and retaken easily, positions could change without prejudice, and importantly, no formal quorum call was required. The nationalists were resolute. As Madison put it, the situation was too serious for despair. [32] They used the same State House, later named Independence Hall, as the Declaration signers. The building setback from the street was still dignified, but the "shaky" steeple was gone. [33] When they adjourned each day, they lived in nearby lodgings, as guests, roomers or renters. They ate supper with one another in town and taverns, "often enough in preparation for tomorrow's meeting." [34]

Delegates reporting to the Convention presented their credentials to the Secretary, Major William Jackson of South Carolina. The state legislatures of the day used these occasions to say why they were sending representatives abroad. New York thus publicly enjoined its members to pursue all possible "alterations and provisions" for good government and "preservation of the Union". New Hampshire called for "timely measures to enlarge the powers of Congress". Virginia stressed the "necessity of extending the revision of the federal system to all its defects". [30]

On the other hand, Delaware categorically forbade any alteration of the Articles one-vote-per-state provision in the Articles of Confederation. [35] The Convention would have a great deal of work to do to reconcile the many expectations in the chamber. At the same time, delegates wanted to finish their work by fall harvest and its commerce. [36]

May 29, Edmund Randolph (VA) proposed the Virginia Plan that would serve as the unofficial agenda for the Convention. It was weighted toward the interests of the larger, more populous states. The intent was to meet the purposes set out in the Articles of Confederation, "common defense, security of liberty and general welfare". The Virginia Plan was national, authority flowed from the people. If the people will ratify them, changes for better republican government and national union should be proposed.

Much of the Virginia Plan was adopted. [i] All the powers in the Articles transfer to the new government. Congress has two houses, the 'house' apportioned by population. It can enact laws affecting more than one state and Congress can override a veto. The President can enforce the law. The Supreme Court and inferior courts rule on international, U.S. and state law. The Constitution is the supreme law and all state officers swear to uphold the Constitution. Every state is a republic, and new states can be admitted. [38] The Congress of the Confederation continued until the new system started. Amendments are possible without Congress. The Convention recommendations went to Congress, from them to the states. State legislatures set the election rules for ratification conventions, and the people "expressly" chose representatives to consider and decide about the Constitution. [37]

June 15, William Patterson (NJ) proposed the Convention minority's New Jersey Plan. It was weighted toward the interests of the smaller, less populous states. The intent was to preserve the states from a plan to "destroy or annihilate" them. The New Jersey Plan was purely federal, authority flowed from the states. Gradual change should come from the states. If the Articles could not be amended, then advocates argued that should be the report from the Convention to the states. [39]

Although the New Jersey Plan only survived three days as an alternate proposal, substantial elements of it were adopted. [j] The articles were "revised, corrected and enlarged" for good government and preservation of the Union. The Senate is elected by the states, at first by the state legislatures. Congress passes acts for revenue collected directly in the states, and the rulings of state courts are reviewed by the Supreme Court. [41] State apportionment for taxes failed, but the 'house' is apportioned by the population count of free inhabitants and three-fifths of others originally. States can be added to the Union. Presidents appoint federal judges. Treaties entered into by Congress are the supreme law of the land. All state judiciaries are bound to enforce treaties, state laws notwithstanding. The President can raise an army to enforce treaties in any state. States treat a violation of law in another state as though it happened there. [41]

Current knowledge of drafting the Constitution comes primarily from the Journal left by James Madison, found chronologically incorporated in Max Farrand's "The Records of the Federal Convention of 1787", which included the Convention Journal and sources from other Federalists and Anti-Federalists. [42]

Scholars observe that it is unusual in world history for the minority in a revolution to have the influence that the "old patriot" Anti-Federalists had over the "nationalist" Federalists who had the support of the revolutionary army in the Society of the Cincinnati. Both factions were intent on forging a nation in which both could be full participants in the changes which were sure to come, since that was most likely to allow for their national union, guarantee liberty for their posterity, and promote their mutual long-term material prosperity.

Slavery in debate Edit

The contentious issue of slavery was too controversial to be resolved during the Convention. But it was at center stage in the Convention three times: June 7 regarding who would vote for Congress, June 11 in debate over how to proportion relative seating in the 'house', and August 22 relating to commerce and the future wealth of the nation.

Once the Convention looked at how to proportion the House representation, tempers among several delegates exploded over slavery. When the Convention progressed beyond the personal attacks, it adopted the existing "federal ratio" for taxing states by three-fifths of slaves held. [43]

On August 6, the Committee of Detail reported its proposed revisions to the Randolph Plan. Again the question of slavery came up, and again the question was met with attacks of outrage. Over the next two weeks, delegates wove a web of mutual compromises relating to commerce and trade, east and west, slave-holding and free. The transfer of power to regulate slave trade from states to central government could happen in 20 years, but only then. [k] Later generations could try out their own answers. The delegates were trying to make a government that might last that long. [44]

Migration of the free or "importation" of indentures and slaves could continue by states, defining slaves as persons, not property. Long-term power would change by population as counted every ten years. Apportionment in the House would not be by wealth, it would be by people, the free citizens and three-fifths the number of other persons meaning propertyless slaves and taxed Indian farming families. [l]

In 1806, President Thomas Jefferson sent a message to the 9th Congress on their constitutional opportunity to remove U.S. citizens from the transatlantic slave trade "[violating] human rights". [45] The 1807 "Act Prohibiting Importation of Slaves" took effect the first instant the Constitution allowed, January 1, 1808. The United States joined the British that year in the first "international humanitarian campaign". [46]

In the 1840–1860 era abolitionists denounced the Fugitive Slave Clause and other protections of slavery. William Lloyd Garrison famously declared the Constitution "a covenant with death and an agreement with Hell." [47]

In ratification conventions, the anti-slavery delegates sometimes began as anti-ratification votes. Still, the Constitution "as written" was an improvement over the Articles from an abolitionist point of view. The Constitution provided for abolition of the slave trade but the Articles did not. The outcome could be determined gradually over time. [48] Sometimes contradictions among opponents were used to try to gain abolitionist converts. In Virginia, Federalist George Nicholas dismissed fears on both sides. Objections to the Constitution were inconsistent, "At the same moment it is opposed for being promotive and destructive of slavery!" [49] But the contradiction was never resolved peaceably, and the failure to do so contributed to the Civil War. [50]

"Great Compromise" Edit

Roger Sherman (CT), although something of a political broker in Connecticut, was an unlikely leader in the august company of the Convention. [m] But on June 11, he proposed the first version of the Convention's "Great Compromise". It was like the proposal he made in the 1776 Continental Congress. Representation in Congress should be both by states and by population. There, he was voted down by the small states in favor of all states equal, one vote only. [52] Now in 1787 Convention, he wanted to balance all the big-state victories for population apportionment. He proposed that in the second 'senate' branch of the legislature, each state should be equal, one vote and no more. [n] [54] The motion for equal state representation in a 'senate' failed: 6 against, 5 for. [55]

Luther Martin, MD
if not state equality
create regional nations

After these defeats, the delegates who called themselves the "old patriots" of 1776 and the "men of original principles" organized a caucus in the Convention. William Paterson (NJ) spoke for them introducing his "New Jersey Plan". [56] [o] Roger Sherman (CT), a signer of the Declaration of Independence, was with them. Supporters explained that it "sustained the sovereignty of the states", while the Edmund Randolph (VA) "Virginia Plan" erased it. The Convention had no authority to propose anything not sent up from state legislatures, and the states were not likely to adopt anything new. The "nationalists" answered, The Convention could not conclude anything, but it could recommend anything. [58]

"Patriots" said if their legislature knew anything about proposals for consolidated government, it would not have sent anyone. "Nationalists" countered, that it would be treason to withhold any proposal for good government when the salvation of the American republic was at stake. [58] Three sessions after its introduction, the New Jersey Plan failed : 7 against, 3 for, 1 divided. [59] For nearly a month there was no progress small states were seriously thinking of walking out of the Convention. [p]

Then June 25, the "original principles" men finally won a vote. The 'senate' would be chosen by the state legislatures, not the people, passed: 9 for, 2 against. [61] The basis of representation for both the 'house' and the 'senate' re-surfaced. Sherman tried a second time to get his idea for a 'house' on the basis of population and a 'senate' on an equal states basis. The "big states" got their population 'house' win, then his equal state 'senate' motion was dropped without a vote. The majority adjourned "before a determination was taken in the House." [62] Luther Martin (MD) insisted that he would rather divide the Union into regional governments than submit to a consolidated government under the Randolph Plan. [63]

Sherman's proposal came up again for the third time from Oliver Ellsworth (CT). In the "senate", the states should have equal representation. Advocates said that it could not be agreed to, the union would fall apart somehow. [64] Big states would not be trusted, the small states could confederate with a foreign power showing "more good faith". If delegates could not unite behind this here, one day the states could be united by "some foreign sword". [65] On the question of equal state representation, the Convention adjourned in the same way again, "before a determination was taken in the House.". [66]

On July 2, the Convention for the fourth time considered a "senate" with equal state votes. This time a vote was taken, but it stalled again, tied at 5 yes, 5 no, 1 divided. The Convention elected one delegate out of the delegation of each state onto a Committee to make a proposal it reported July 5. [67] Nothing changed over five days. July 10, Lansing and Yates (NY) quit the Convention in protest over the big state majorities repeatedly overrunning the small state delegations in vote after vote. [68] No direct vote on the basis of 'senate' representation was pushed on the floor for another week.

But the Convention floor leaders kept moving forward where they could. First the new 'house' seat apportionment was agreed, balancing big and small, north and south. The big states got a decennial census for 'house' apportionment to reflect their future growth. Northerners had insisted on counting only free citizens for the 'house' southern delegations wanted to add property. Benjamin Franklin's compromise was that there would be no "property" provision to add representatives, but states with large slave populations would get a bonus added to their free persons by counting three-fifths other persons. [69]

On July 16, Sherman's "Great Compromise" prevailed on its fifth try. Every state was to have equal numbers in the United States Senate. [70] Washington ruled it passed on the vote 5 yes, 4 no, 1 divided. It was not that five was a majority of twelve, but to keep the business moving forward, he used precedent established in the Convention earlier. [71] Now some of the big-state delegates talked of walking out, but none did. Debate over the next ten days developed an agreed general outline for the Constitution. [72] Small states readily yielded on many questions. Most remaining delegates, big-state and small, now felt safe enough to chance a new plan. [73]

Two new branches Edit

The Constitution innovated two branches of government that were not a part of the U.S. government during the Articles of Confederation. Previously, a thirteen-member committee had been left behind in Philadelphia when Congress adjourned to carry out the "executive" functions. Suits between states were referred to the Congress of the Confederation, and treated as a private bill to be determined by majority vote of members attending that day.

On June 7, the "national executive" was taken up in Convention. The "chief magistrate", or 'presidency' was of serious concern for a formerly colonial people fearful of concentrated power in one person. But to secure a "vigorous executive", nationalist delegates such as James Wilson (PA), Charles Pinckney (SC), and John Dickenson (DE) favored a single officer. They had someone in mind whom everyone could trust to start off the new system, George Washington.

After introducing the item for discussion, there was a prolonged silence. Benjamin Franklin (Pa) and John Rutledge (SC) had urged everyone to speak their minds freely. When addressing the issue with George Washington in the room, delegates were careful to phrase their objections to potential offenses by officers chosen in the future who would be 'president' "subsequent" to the start-up. Roger Sherman (CT), Edmund Randolph (VA) and Pierce Butler [q] (SC) all objected, preferring two or three persons in the executive, as the ancient Roman Republic had when appointing consuls.

Nathaniel Gorham was Chair of the Committee of the Whole, so Washington sat in the Virginia delegation where everyone could see how he voted. The vote for a one-man 'presidency' carried 7-for, 3-against, New York, Delaware and Maryland in the negative. Virginia, along with George Washington, had voted yes. As of that vote for a single 'presidency', George Mason (VA) gravely announced to the floor, that as of that moment, the Confederation's federal government was "in some measure dissolved by the meeting of this Convention." [74]

Rufus King, MA
district courts = flexibility

The Convention was following the Randolph Plan for an agenda, taking each resolve in turn to move proceedings forward. They returned to items when overnight coalitions required adjustment to previous votes to secure a majority on the next item of business. June 19, and it was Randolph's Ninth Resolve next, about the national court system. On the table was the nationalist proposal for the inferior (lower) courts in the national judiciary.

Pure 1776 republicanism had not given much credit to judges, who would set themselves up apart from and sometimes contradicting the state legislature, the voice of the sovereign people. Under the precedent of English Common Law according to William Blackstone, the legislature, following proper procedure, was for all constitutional purposes, "the people." This dismissal of unelected officers sometimes took an unintended turn among the people. One of John Adams's clients believed the First Continental Congress in 1775 had assumed the sovereignty of Parliament, and so abolished all previously established courts in Massachusetts. [75]

In the Convention, looking at a national system, Judge Wilson (PA) sought appointments by a single person to avoid legislative payoffs. Judge Rutledge (SC) was against anything but one national court, a Supreme Court to receive appeals from the highest state courts, like the South Carolina court he presided over as Chancellor. Rufus King (MA) thought national district courts in each state would cost less than appeals that otherwise would go to the 'supreme court' in the national capital. National inferior courts passed but making appointments by 'congress' was crossed out and left blank so the delegates could take it up later after "maturer reflection." [75]

Re-allocate power Edit

The Constitutional Convention created a new, unprecedented form of government by reallocating powers of government. Every previous national authority had been either a centralized government, or a "confederation of sovereign constituent states." The American power-sharing was unique at the time. The sources and changes of power were up to the states. The foundations of government and extent of power came from both national and state sources. But the new government would have a national operation. [76] To meet their goals of cementing the Union and securing citizen rights, Framers allocated power among executive, senate, house and judiciary of the central government. But each state government in their variety continued exercising powers in their own sphere. [77]

Increase Congress Edit

The Convention did not start with national powers from scratch, it began with the powers already vested in the Congress of the Confederation with control of the military, international relations and commerce. [r] The Constitution added ten more. Five were minor relative to power sharing, including business and manufacturing protections. [s] One important new power authorized Congress to protect states from the "domestic violence" of riot and civil disorder, but it was conditioned by a state request. [79]

The Constitution increased Congressional power to organize, arm and discipline the state militias, to use them to enforce the laws of Congress, suppress rebellions within the states and repel invasions. But the Second Amendment would ensure that Congressional power could not be used to disarm state militias. [80] [81]

Taxation substantially increased the power of Congress relative to the states. It was limited by restrictions, forbidding taxes on exports, per capita taxes, requiring import duties to be uniform and that taxes be applied to paying U.S. debt. But the states were stripped of their ability to levy taxes on imports, which was at the time, "by far the most bountiful source of tax revenues".

Congress had no further restrictions relating to political economy. It could institute protective tariffs, for instance. Congress overshadowed state power regulating interstate commerce the United States would be the "largest area of free trade in the world." [82] The most undefined grant of power was the power to "make laws which shall be necessary and proper for carrying into execution" the Constitution's enumerated powers. [80]

Limit governments Edit

As of ratification, sovereignty was no longer to be theoretically indivisible. With a wide variety of specific powers among different branches of national governments and thirteen republican state governments, now "each of the portions of powers delegated to the one or to the other . is . sovereign with regard to its proper objects". [83] There were some powers that remained beyond the reach of both national powers and state powers, [t] so the logical seat of American "sovereignty" belonged directly with the people-voters of each state. [84]

Besides expanding Congressional power, the Constitution limited states and central government. Six limits on the national government addressed property rights such as slavery and taxes. [u] Six protected liberty such as prohibiting ex post facto laws and no religious tests for national offices in any state, even if they had them for state offices. [v] Five were principles of a republic, as in legislative appropriation. [w] These restrictions lacked systematic organization, but all constitutional prohibitions were practices that the British Parliament had "legitimately taken in the absence of a specific denial of the authority." [85]

The regulation of state power presented a "qualitatively different" undertaking. In the state constitutions, the people did not enumerate powers. They gave their representatives every right and authority not explicitly reserved to themselves. The Constitution extended the limits that the states had previously imposed upon themselves under the Articles of Confederation, forbidding taxes on imports and disallowing treaties among themselves, for example. [x]

In light of the repeated abuses by ex post facto laws passed by the state legislatures, 1783–1787, the Constitution prohibited ex post facto laws and bills of attainder to protect United States citizen property rights and right to a fair trial. Congressional power of the purse was protected by forbidding taxes or restraint on interstate commerce and foreign trade. States could make no law "impairing the obligation of contracts." [86] [y] To check future state abuses the framers searched for a way to review and veto state laws harming the national welfare or citizen rights. They rejected proposals for Congressional veto of state laws and gave the Supreme Court appellate case jurisdiction over state law because the Constitution is the supreme law of the land. [88] The United States had such a geographical extent that it could only be safely governed using a combination of republics. Federal judicial districts would follow those state lines. [84]

Population power Edit

The British had relied upon a concept of "virtual representation" to give legitimacy to their House of Commons. According to many in Parliament, it was not necessary to elect anyone from a large port city, or the American colonies, because the representatives of "rotten boroughs", mostly abandoned medieval fair towns with twenty voters, "virtually represented" them. Philadelphia in the colonies was second in population only to London. [89]

"They were all Englishmen, supposed to be a single people, with one definable interest. Legitimacy came from membership in Parliament of the sovereign realm, not elections from people. As Blackstone explained, the Member is "not bound . to consult with, or take the advice, of his constituents." As Constitutional historian Gordon Wood elaborated, "The Commons of England contained all of the people's power and were considered to be the very persons of the people they represented." [90]

While the English "virtual representation" was hardening into a theory of parliamentary sovereignty, the American theory of representation was moving towards a theory of sovereignty of the people. In their new constitutions written since 1776, Americans required community residency of voters and representatives, expanded suffrage, and equalized populations in voting districts. There was a sense that representation "had to be proportioned to the population." [91] The Convention would apply the new principle of "sovereignty of the people" both to the House of Representatives, and to the United States Senate.

House changes Edit

Once the Great Compromise was reached, delegates in Convention then agreed to a decennial census to count the population. The Americans themselves did not allow for universal suffrage for all adults. [z] Their sort of "virtual representation" said that those voting in a community could understand and themselves represent non-voters when they had like interests that were unlike other political communities. There were enough differences among people in different American communities for those differences to have a meaningful social and economic reality. Thus New England colonial legislatures would not tax communities which had not yet elected representatives. When the royal governor of Georgia refused to allow representation to be seated from four new counties, the legislature refused to tax them. [93]

The 1776 Americans had begun to demand expansion of the franchise, and in each step, they found themselves pressing towards a philosophical "actuality of consent." [94] The Convention determined that the power of the people, should be felt in the House of Representatives. For the U.S. Congress, persons alone were counted. Property was not counted.

Senate changes Edit

The Convention found it more difficult to give expression to the will of the people in new states. What state might be "lawfully arising" outside the boundaries of the existing thirteen states? [95] The new government was like the old, to be made up of pre-existing states. Now there was to be admission of new states. Regular order would provide new states by state legislatures for Kentucky, Tennessee and Maine. But the Congress of the Confederation had by its Northwest Ordinance presented the Convention with a new issue. Settlers in the Northwest Territory might one day constitute themselves into "no more than five" states. More difficult still, most delegates anticipated adding alien peoples of Canada, Louisiana and Florida to United States territory. [96] Generally in American history, European citizens of empire were given U.S. citizenship on territorial acquisition. Should they become states?

Some delegates were reluctant to expand into any so "remote wilderness". It would retard the commercial development of the east. They would be easily influenced, "foreign gold" would corrupt them. Western peoples were the least desirable Americans, only good for perpetual provinces. [97] There were so many foreigners moving out west, there was no telling how things would turn out. These were poor people, they could not pay their fair share of taxes. It would be "suicide" for the original states. New states could become a majority in the Senate, they would abuse their power, "enslaving" the original thirteen. If they also loved liberty, and could not tolerate eastern state dominance, they would be justified in civil war. Western trade interests could drag the country into an inevitable war with Spain for the Mississippi River. [98] As time wore on, any war for the Mississippi River was obviated by the 1803 Louisiana Purchase and the 1812 American victory at New Orleans.

Even if there were to be western states, a House representation of 40,000 might be too small, too easy for the westerners. "States" had been declared out west already. They called themselves republics, and set up their own courts directly from the people without colonial charters. In Transylvania, Westsylvania, Franklin, and Vandalia, "legislatures" met with emissaries from British and Spanish empires in violation of the Articles of Confederation, just as the sovereign states had done. [aa] In the Constitution as written, no majorities in Congress could break up the larger states without their consent. [96]

"New state" advocates had no fear of western states achieving a majority one day. For example, the British sought to curb American expansion, which caused the angered colonists to agitate for independence. Follow the same rule, get the same results. Congress has never been able to discover a better rule than majority rule. If they grow, let them rule. As they grow, they must get all their supplies from eastern businesses. Character is not determined by points of a compass. States admitted are equals, they will be made up of our brethren. Commit to right principles, even if the right way, one day, benefits other states. They will be free like ourselves, their pride will not allow anything but equality. [100]

It was at this time in the Convention that Reverend Manasseh Cutler arrived to lobby for western land sales. He brought acres of land grants to parcel out. Their sales would fund most of the U.S. government expenditures for its first few decades. There were allocations for the Ohio Company stockholders at the Convention, and for others delegates too. Good to his word, in December 1787, Cutler led a small band of pioneers into the Ohio Valley. [101]

The provision for admitting new states became relevant at the purchase of the Louisiana Territory from France. It was constitutionally justifiable under the "treaty making" power of the federal government. The agrarian advocates sought to make the purchase of land that had never been administered, conquered, or formally ceded to any of the original thirteen states. Jefferson's Democratic-Republicans would divide the Louisiana Purchase into states, speeding land sales to finance the federal government with no new taxes. The new populations of new states would swamp the commercial states in the Senate. They would populate the House with egalitarian Democrat-Republicans to overthrow the Federalist Party. [ab] Jefferson dropped the proposal of Constitutional amendment to permit the purchase, and with it, his notion of a confederation of sovereign states. [102]

Final document Edit

After nearly four months of debate, on September 8, 1787, the final text of the Constitution was set down and revised. Then, an official copy of the document was engrossed by Jacob Shallus. The effort consisted of copying the text (prelude, articles and endorsement) on four sheets of vellum parchment, made from treated animal skin and measuring approximately 28 inches (71 cm) by 23 inches (58 cm), probably with a goose quill. Shallus engrossed the entire document except for the list of states at the end of the document, which are in Alexander Hamilton's handwriting. [103] On September 17, 1787, following a speech given by Benjamin Franklin, 39 delegates endorsed and submitted the Constitution to the Congress of the Confederation. [104]

Massachusetts' Rufus King assessed the Convention as a creature of the states, independent of the Congress of the Confederation, submitting its proposal to that Congress only to satisfy forms. Though amendments were debated, they were all defeated. On September 28, 1787, the Congress of the Confederation resolved "unanimously" to transmit the Constitution to state legislatures for submitting to a ratification convention according to the Constitutional procedure. [105] Several states enlarged the numbers qualified just for electing ratification delegates. In doing so, they went beyond the Constitution's provision for the most voters for the state legislature. [ac]

Delaware, on December 7, 1787, became the first State to ratify the new Constitution, with its vote being unanimous. Pennsylvania ratified on December 12, 1787, by a vote of 46 to 23 (66.67%). New Jersey ratified on December 19, 1787, and Georgia on January 2, 1788, both unanimously. The requirement of ratification by nine states, set by Article Seven of the Constitution, was met when New Hampshire voted to ratify, on June 21, 1788.

In New York, fully two thirds of the convention delegates were at first opposed to the Constitution. Hamilton led the Federalist campaign, which included the fast-paced appearance of The Federalist Papers in New York newspapers. An attempt to attach conditions to ratification almost succeeded, but on July 26, 1788, New York ratified, with a recommendation that a bill of rights be appended. The vote was close – yeas 30 (52.6%), nays 27 – due largely to Hamilton's forensic abilities and his reaching a few key compromises with moderate anti-Federalists led by Melancton Smith. [ad]

Following Massachusetts's lead, the Federalist minorities in both Virginia and New York were able to obtain ratification in convention by linking ratification to recommended amendments. [111] A minority of the Constitution's critics continued to oppose the Constitution. Maryland's Luther Martin argued that the federal convention had exceeded its authority he still called for amending the Articles. [112] Article 13 of the Articles of Confederation stated that the union created under the Articles was "perpetual" and that any alteration must be "agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State". [113]

However, the unanimity required under the Articles made all attempts at reform impossible. Martin's allies such as New York's John Lansing Jr., dropped moves to obstruct the Convention's process. They began to take exception to the Constitution "as it was", seeking amendments. Several conventions saw supporters for "amendments before" shift to a position of "amendments after" for the sake of staying in the Union. New York Anti's "circular letter" was sent to each state legislature on 26 July 1788 (the same date on which that state's legislature voted to ratify the Constitution) proposing a second constitutional convention for "amendments before". It failed in the state legislatures. Ultimately only North Carolina and Rhode Island would wait for amendments from Congress before ratifying. [111]

The Constitution was ratified by the states
in the following order: [114]
# Date State Votes
Yea Nay
1 December 7, 1787 Delaware 30 0
2 December 12, 1787 Pennsylvania 46 23
3 December 18, 1787 New Jersey 38 0
4 January 2, 1788 Georgia 26 0
5 January 9, 1788 Connecticut 128 40
6 February 6, 1788 Massachusetts 187 168
7 April 28, 1788 Maryland 63 11
8 May 23, 1788 South Carolina 149 73
9 June 21, 1788 New Hampshire 57 47
10 June 25, 1788 Virginia 89 79
11 July 26, 1788 New York 30 27
12 November 21, 1789 North Carolina 194 77
13 May 29, 1790 Rhode Island 34 32

Article VII of the proposed constitution stipulated that only nine of the thirteen states would have to ratify for the new government to go into effect for the participating states. [115] By the end of July 1788, eleven states had ratified the Constitution, and soon thereafter, the process of organizing the new government began. On September 13, 1788, the Congress of the Confederation certified that the new Constitution had been ratified by more than enough states for it to go into effect. Congress fixed the city of New York as the temporary seat of the new government and set the dates for the election of representatives and presidential electors. It also set the date for operations to begin under the new government. [116] This occurred on March 4, 1789, when the First Congress convened.

The membership of the new Congress was decidedly federalist. In the eleven-state (minus North Carolina and Rhode Island) Senate 20 were Federalist and two Anti-federalist (both from Virginia). The House included 48 Federalists and 11 Anti-federalists (from four states: Massachusetts, New York, South Carolina, and Virginia). [117] On April 6 the House and Senate held a joint meeting to count the electoral vote. George Washington was unanimously elected the first president, even receiving the electoral vote of ardent anti-federalist Patrick Henry. [118] John Adams of Massachusetts was elected vice president. Both were sworn into office on April 30, 1789. The business of setting up the new government was completed.

Anti-Federalists' fears of personal oppression by Congress were allayed by twelve amendments passed under the floor leadership of James Madison during the first session of Congress. The ten of these that were ratified by the required number of state legislatures became known as the Bill of Rights. [119] Objections to a potentially remote federal judiciary were reconciled with 13 federal courts (11 states, plus Maine and Kentucky), and three federal riding circuits out of the Supreme Court: Eastern, Middle and South. [120] Suspicion of a powerful federal executive was answered by Washington's cabinet appointments of once-Anti-Federalists Edmund Jennings Randolph as Attorney General and Thomas Jefferson as Secretary of State. [121] [122] What Constitutional historian Pauline Maier termed a national "dialogue between power and liberty" had begun anew. [123]

Since the beginning of federal operations under the Constitution in 1789 through the beginning of 2013, approximately 11,539 proposals to amend the Constitution have been introduced in the United States Congress. [124] Of these, thirty-three have been approved by Congress and sent to the states for ratification. Twenty-seven of these amendments have been ratified and are now part of the Constitution. The first ten amendments were adopted and ratified simultaneously and are known collectively as the Bill of Rights. Prior to the Twenty-seventh Amendment, which languished for 202 years, 7 months, 12 days before being ratified (submitted for ratification in 1789 as part of the Bill of Rights, but not ratified until 1992), the Twenty-second Amendment held the record for longest time taken to successfully complete the ratification process – 3 years, 11 months, 6 days. The Twenty-sixth Amendment holds the record for shortest time taken – 3 months, 8 days. [125] Six amendments adopted by Congress and sent to the states have not been ratified by the required number of states and are not part of the Constitution. Four of these are still technically open and pending, one is closed and has failed by its own terms, and one is closed and has failed by the terms of the resolution proposing it.

Bill of Rights Edit

Much of opposition to the proposed Constitution within several states arose, not because the machinery of the new frame of government was considered unworkable or because strengthening the union between the 13 states viewed as undesirable. The debates in the state ratifying conventions centered around the absence of anything equivalent to the bill of rights found in several state constitutions. [126] George Mason, a delegate to the 1787 Constitutional Convention, and the author of the Virginia Declaration of Rights, refused to sign the document because he felt it did not specifically spell out or protect individual rights sufficiently. He also opposed the constitution when it was brought before the state for ratification. He acquiesced and the convention voted narrowly to give its assent only after it was decided that a list of twenty proposed amendments be sent along with the state's resolution of ratification. Delegates to Massachusetts' convention had many of the same concerns, and along with its notification of approval made a request for nine alterations, the first among them being "that it be explicitly declared that all powers not specifically delegated to Congress by the Constitution are reserved to the states to be exercised by them." New York, not to be outdone, appended a list of thirty-two requested amendments plus a lengthy statement of impressions and explanations about the new Constitution to their affirmative vote. [126]

The sharp Anti-Federalist critique of the Constitution did not abate after it became operational, and by the time the First Congress convened in March 1789, there existed widespread sentiment in both the House and Senate in favor of making alterations. That September, Congress adopted twelve amendments and sent to the states for ratification. Ten of these were ratified by the required number of states in December 1791 and became part of the Constitution. These amendments enumerate freedoms not explicitly indicated in the main body of the Constitution, such as freedom of religion, freedom of speech, a free press, and free assembly the right to keep and bear arms freedom from unreasonable search and seizure, security in personal effects, and freedom from warrants issued without probable cause indictment by a grand jury for a capital or "infamous crime" guarantee of a speedy, public trial with an impartial jury and prohibition of double jeopardy. In addition, the Bill of Rights reserves for the people any rights not specifically mentioned in the Constitution and reserves all powers not specifically granted to the federal government to the people or the States.

Subsequent amendments Edit

Amendments to the Constitution subsequent to the Bill of Rights cover a wide range of subjects. Several have added significant content to the original document. One of the most far-reaching is the Fourteenth, ratified in 1868, which establishes a clear and simple definition of citizenship and guarantees equal treatment under the law. Also significant are the Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth, which were enacted to extend the right to vote to persons previously considered ineligible and also to protect their exercise of that right. One Amendment, the Eighteenth, which criminalized the production, transport and sale of alcohol nationwide, was later repealed by another, the Twenty-first. Nine ratified amendments (11, [127] 12, [128] 13, [127] 14, [129] 16, [130] 17, [131] 20, [132] 22, [133] and 25 [134] ) have explicitly superseded or modified the text of the original Constitution.

Article 1, Section 2, Clause 3a α Regarding how the apportionment
of representatives and direct taxes
among the states is determined.
Superseded by the Fourteenth Amendment, Section 2
Article 1, Section 3, Clause 1 Regarding the senators from each
state being chosen by the
legislature of that state.
Superseded by the Seventeenth Amendment, Section 1 β
Article 1, Section 3, Clause 2 Regarding the filling of vacancies
in the senate.
Superseded by the Seventeenth Amendment, Section 2
Article 1, Section 4, Clause 2 Regarding when each year the
Congress must assemble.
Modified by the Twentieth Amendment, Section 2
Article 1, Section 9, Clause 4 Regarding Congress' restricted
taxation power.
Superseded by the Sixteenth Amendment
Article 2, Section 1, Clause 1b Regarding the length of the
president's and vice president's
term of office.
Temporarily modified γ by the Twentieth Amendment, Section 1
Article 2, Section 1, Clause 3 Regarding Electoral College
voting procedures.
Superseded by the Twelfth Amendment δ
Article 2, Section 1, Clause 5 Regarding eligibility for
holding the office of president.
Modified by the Twenty-second Amendment, Section 1
Article 2, Section 1, Clause 6 Regarding presidential powers and
duties if the presidency is vacant
or if the President is unable to
discharge said powers and duties.
Superseded by the Twenty-fifth Amendment
Article 3, Section 2, Clause 1 Regarding the diversity jurisdiction
given to the judiciary to hear cases
between a state and citizens
of another state.
Modified by the Eleventh Amendment
Article 4, Section 2, Clause 3 Regarding persons held (involuntarily)
to service or labor.
Superseded by the Thirteenth Amendment, Section 1
α – In 1865, the Thirteenth Amendment rendered the formula prescribed in Article 1, Section 2, Clause 3, whereby only three-fifths of all other Persons (slaves) were counted when determining a state's total population for apportionment purposes, moot de jure. Three years later, the entire first sentence of the clause was superseded by the Fourteenth Amendment, Section 2. This later amendment however, left Congress' taxation power unchanged, as the replacement clause in it made no mention of apportionment of direct taxes. Even so, Congress' ability to levy taxes was still governed by Article 1 Section 9 Clause 4 of the Constitution.
β – Section 1 of the Seventeenth Amendment, regarding the six-year term of office for senators, was shortened for those persons whose term as senator ended on March 4, 1935, 1937, and 1939, by the interval between January 3 and March 4, of that year (61 days) by the Twentieth Amendment, which became part of the Constitution on January 23, 1933 and the changes made by Section 1 took effect on October 15, 1933. This amendment also had a de facto effect on Article 1, Section 2, Clause 1a, for although the election was held as prescribed, the term of office for the persons elected to Congress in November 1932, was in effect shortened by the same interval of days.
γ – The term of office for the persons elected President and Vice President (Franklin D. Roosevelt and John Nance Garner respectively) in November 1932, was shortened by the interval between January 20 and March 4, 1937 (44 days), by the Twentieth Amendment.
δ – The fourth sentence of the Twelfth Amendment, regarding the Vice President acting as President if the House, when the choice is theirs to make, has not elected a President by March 4, has been superseded by the Twentieth Amendment, Section 3.

Expand democracy Edit

In the early twentieth century Lochner era, the Supreme Court ruled unconstitutional various state laws that limited labor contracts. The Constitution was criticized as putting the government at the beck and call of big business. [135]

More recent criticism has often been academic and limited to particular features. University of Texas law professor Sanford Levinson wonders whether it makes sense for the Connecticut Compromise to give "Wyoming the same number of votes as California, which has roughly seventy times the population". [136] Levinson thinks this imbalance causes a "steady redistribution of resources from large states to small states." [136] Levinson is critical of the Electoral College as it allows the possibility of electing presidents who do not win the majority, or even plurality, of votes. [136] Five times in American history, presidents have been elected despite failing to win a plurality of the popular vote: 1824 (John Quincy Adams), 1876 (Rutherford B. Hayes), 1888 (Benjamin Harrison), 2000 (George W. Bush) and 2016 (Donald Trump). [137] [138] [139] [140] The current impeachment powers do not give the people a quick way to remove incompetent or ill presidents, in his view. [140] Others have criticized gerrymandering. [141]

Yale professor Robert A. Dahl saw a problem with an American tendency towards worship of the Constitution itself. He sees aspects of American governance which are "unusual and potentially undemocratic: the federal system, the bicameral legislature, judicial review, presidentialism, and the electoral college system." [142] Levinson and Labunski and others have called for a Second Constitutional Convention, [143] although professors like Dahl believe there is no real hope this would ever happen. [142] French journalist Jean-Philippe Immarigeon wrote in Harper's that the "nearly 230-year-old constitution stretched past the limits of its usefulness", and suggested key problem points were the inability to call an election when government became gridlocked, a several month period between election of a president and when he or she takes office, and inability of the lower house of Congress to influence serious foreign policy decisions such as ending a war when faced with a veto. [144]

University of Virginia professor Larry Sabato advocates an amendment to organize presidential primaries. [145] Sabato details more objections in his book A More Perfect Constitution. [145] [146] He opposes life tenure for Federal Court judges, including Supreme Court justices. [146] He also writes that "If the 26 least populated states voted as a bloc, they would control the U.S. Senate with a total of just under 17% of the country's population." [146] Sabato further contends that the Constitution is in need of an overhaul, and argues that only a national constitutional convention can bring the document up to date and settle many of the issues that have arisen over the past two centuries. [147]

States' rights Edit

In United States history, four periods of widespread Constitutional criticism have been characterized by the idea that specific political powers belong to state governments and not to the federal government—a doctrine commonly known as states' rights. At each stage, states' rights advocates failed to develop a preponderance in public opinion or to sustain the democratic political will required to alter the generally held constitutional understanding and political practice in the United States. At its adoption among the people in the state ratification conventions, the "men of original principles" opposed the new national government as violating the Whig philosophy generally accepted among the original thirteen colonies in 1776. According to this view, Congress as a legislature should be only equal to any state legislature, and only the people in each state might be sovereign. They are now referred to as the Anti-Federalists in American historiography. The proponents of "state sovereignty" and "states rights" were outvoted in eleven of thirteen state ratification conventions, then thirteen of thirteen, to "ordain and establish" the Constitution.

During Andrew Jackson's administration, South Carolina objected to U.S. government's "tariff of abominations" collected as federal duties in Charleston Harbor. The Nullification Crisis ensued. Justification for the nullifiers was found in the U.S. Senate speeches and writings of John C. Calhoun. He defended slavery against the Constitutional provisions allowing its statutory regulation or its eventual abolition by Constitutional amendment, most notably in his Disquisition on Government. The crisis was averted when President Jackson, a former Major General, declared he would march a U.S. army into South Carolina and hang the first nullifier he saw from the first tree, and a new negotiated tariff, the Compromise Tariff of 1833, satisfactory to South Carolina was enacted. Despite this, a states-rights-based defense of slavery persisted amongst Southerners until the American Civil War conversely, Northerners explored nullification of the Fugitive Slave Act of 1850. Abraham Lincoln kept a portrait of Andrew Jackson above his desk at the U.S. War Department for the duration of the American Civil War as a clear symbol of Lincoln's intent and resolve as well as to draw attention to an executive precedent for Lincoln's actions.

In the mid-19th Century during the administrations of Abraham Lincoln, Andrew Johnson and Ulysses S. Grant, the United States suffered a tragic passage through the Civil War and Reconstruction. An important survey of the philosophical and legal underpinnings of "States Rights" as held by secessionists and Lost Cause advocates afterwards is found in the speeches of Confederate President Jefferson Davis and his Rise and Fall of the Confederate Government. Davis defended secession by appealing to the "original principles" of the Founders' 1776 Revolutionary generation, and by expanding on William Blackstone's doctrine of legislative supremacy. By the elections of 1872, all states which had been admitted to the United States in accordance with the Constitution were fully represented in the U.S. Congress.

Following the Supreme Court 1954 holding in Brown v. Board of Education, President Dwight D. Eisenhower used National Guard and U.S. paratroopers to enforce the rulings of the Federal Courts as they pertained to the Constitution. The "States Rights" doctrine was again appealed to during the mid-20th Century resistance to racial integration in the schools, notably in Arkansas' Little Rock Nine, Alabama's Stand in the Schoolhouse Door, and Virginia's Massive Resistance. Public schools in every state are now racially integrated by law under the authority of the U.S. Constitution.

The tradition is seen in many shorter episodes of limited minority protest against the United States. During the War of 1812, Federalists conducted a Hartford Convention proposing New England secession during wartime to reopen trade with the declared enemy of the United States. It led to accusations of treason and the demise of the Federalist Party as a force in American politics. In 1921, the Maryland Attorney General sued to block woman suffrage. He argued in Leser v. Garnett that state legislatures were Constitutionally the sole determiners of who should vote in what federal or state elections, and that the 19th Amendment was improper. The Supreme Court's judicial review of the state court findings held that the 19th Amendment was Constitutional, and that it applied to the women's right to vote in every state. Women now vote in every state under the authority of the U.S. Constitution.

One exceptional example of "states rights" persuading overwhelming majorities in a democratic and sustained way, and so transforming the nation came in the John Adams administration. Fear had spread that radical democratic sentiment might turn subversive as it had in the French Reign of Terror. But the Federalist-sponsored Alien and Sedition Acts meant to preempt the danger led to suppression of opposition press. The political reaction in the Virginia and Kentucky Resolutions sparked public opposition against the Federalist policy and led to twenty-four years of Constitutionally elected Democratic-Republican Party rule through six administrations of Thomas Jefferson, James Madison and James Monroe.

In the late 20th and early 21st centuries, opponents of federal laws prohibiting the sale and possession of marijuana have based their objections partially on states' rights grounds, as have opponents of federal laws and regulations pertaining to firearms. States' rights under the constitution has also been recently raised as an issue on a number of other occasions, most notably regarding Common Core, the Affordable Care Act, and same-sex marriage. [148]

At first, little interest was shown in the parchment object itself. Madison had custody of it as Secretary of State (1801–1809) but having left Washington, he had lost track of it in the years leading to his death. A publisher had access to it in 1846 for a book on the Constitution. In 1883 historian J. Franklin Jameson found the parchment folded in a small tin box on the floor of a closet at the State, War and Navy Building. In 1894 the State Department sealed the Declaration and Constitution between two glass plates and kept them in a safe. [149]

The two parchment documents were turned over to the Library of Congress by executive order, and in 1924 President Calvin Coolidge dedicated the bronze-and-marble shrine for public display of the Constitution in the main building. The parchments were laid over moisture absorbing cellulose paper, vacuum-sealed between double panes of insulated plate glass, and protected from light by a gelatin film. Although building construction of the Archives Building was completed in 1935, in December 1941 they were moved from the Library of Congress until September 1944, and stored at the U.S. Bullion Depository, Fort Knox, Kentucky, along with the Declaration of Independence and the Gettysburg Address. [150] In 1951 following a study by the National Bureau of Standards to protect from atmosphere, insects, mold and light, the parchments were re-encased with special light filters, inert helium gas and proper humidity. They were transferred to the National Archives and Records Administration in 1952. [151]

Since 1952, the "Charters of Freedom" have been displayed in the Rotunda of the National Archives Building. Visual inspections have been enhanced by electronic imaging. Changes in the cases led to removal from their cases July 2001, preservation treatment by conservators, and installment in new encasements for public display in September 2003. [152] [153] [154]


Ratification: The U.S. Constitution is Born - History

While the Constitutional Convention was held to revise the Articles of Confederation, an entirely new constitution was drafted.

Learning Objectives

Explain the arguments made by the Federalists and Anti-Federalists over the new U.S. Constitution

Key Takeaways

Key Points

  • A Constitutional Convention was called in the summer of 1787 to change the Articles of Confederation. During this time, many compromises were formed to appease regional factions.
  • The Great Compromise brought together the New Jersey Plan and the Virginia Plan to create the Constitution ‘s legislative system. The Three-Fifths Compromise appeased Southern representatives by allowing them to count slaves for representation and taxation purposes.
  • The Federalists wanted a strong government and strong executive branch, while the anti-Federalists wanted a weaker central government.
  • The Federalists did not want a bill of rights —they thought the new constitution was sufficient. The anti-federalists demanded a bill of rights.

Key Terms

  • Articles of Confederation: The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the thirteen founding states that established the United States of America as a confederation of sovereign states and served as its first constitution.
  • delegate: A person authorized to act as representative for another in politics, a party representative allocated to nominate a party candidate.
  • Three-Fifths Compromise: an agreement between Southern and Northern states reached during the Philadelphia Convention of 1787, in which three-fifths of the population of freed slaves would be counted for representation purposes regarding both the distribution of taxes and the apportionment of the members of the United States House of Representatives

The Constitutional Convention

In 1787, a convention was called in Philadelphia with the declared purpose of revising the Articles of Confederation. However, many delegates intended to use this convention to draft a new constitution. All states except for Rhode Island sent delegates, though not all delegates attended the Convention. At the Convention, the primary issue was representation of the states. Under the Articles, each state had one vote in Congress. The more populous states wanted representation to be based on population (proportional representation). James Madison of Virginia crafted the Virginia Plan, which guaranteed proportional representation and granted wide powers to the Congress. The smaller states, on the other hand, supported equal representation through William Paterson’s New Jersey Plan. The New Jersey Plan also increased the Congress’ power, but it did not go nearly as far as the Virginia Plan. The conflict threatened to end the Convention, but Roger Sherman of Connecticut proposed the “Great Compromise” (or Connecticut Compromise) under which one house of Congress would be based on proportional representation, and the other house would be based on equal representation. Eventually, the Compromise was accepted, and the Convention was saved.

Compromises were important in settling other disputes at the Convention. The Three-Fifths Compromise designated that three-fifths of slave population would be counted toward representation in Congress. In another compromise, the Congress agreed to ban slave trade after 1808. Similarly, issues relating to the empowerment and election of the President were resolved. This led to the Electoral College system in choosing the Chief Executive of the nation.

Federalists vs. Anti-federalists

The Constitution required ratification by nine states in order to come into effect. The fight for ratification was long and difficult. The Constitution was to be ratified by special ratifying conventions, not by state legislature. Interested in retaining power, states were resistant to ratifying a new, stronger central government. Those who favored ratification were known as Federalists,while those who opposed it were considered Anti- Federalists.The Federalists attacked the weaknesses of the Articles of Confederation. On the other hand, the Anti-Federalists also supported a House of Representative with substantive power. They acknowledged that the Constitution was not perfect, but they said that it was much better than any other proposal. Three Federalists—Alexander Hamilton, James Madison, and John Jay—wrote a series of essays called The Federalist Papers. These essays explained the Constitution and defended its provisions. The documents were intended for the state of New York, though people from across the country read them. The Federalists defended the weakest point of the Constitution—a lack of a Bill of Rights—by suggesting that current protections were sufficient and that the Congress could always propose Amendments. Anti-Federalists such as Patrick Henry attacked the Constitution, suggesting that it would lead to a dangerously powerful national government. One of the Anti-Federalist’s strongest arguments was the Constitution’s lack of a Bill of Rights. Many Anti-Federalists were eventually persuaded by the Federalists’ arguments.

Alexander Hamilton: Alexander Hamilton was a key player at the Constitutional Convention.


Contents

First government

From September 5, 1774, to March 1, 1781, the Continental Congress functioned as the provisional government of the United States. Delegates to the First (1774) and then the Second (1775–1781) Continental Congress were chosen largely through the action of committees of correspondence in various colonies rather than through the colonial governments of the Thirteen Colonies. [12]

Articles of Confederation

The Articles of Confederation and Perpetual Union was the first constitution of the United States. [13] It was drafted by the Second Continental Congress from mid-1776 through late 1777, and ratification by all 13 states was completed by early 1781. The Articles of Confederation gave little power to the central government. The Confederation Congress could make decisions, but lacked enforcement powers. Implementation of most decisions, including modifications to the Articles, required unanimous approval of all 13 state legislatures. [14]

Although, in a way, the Congressional powers in Article 9 made the "league of states as cohesive and strong as any similar sort of republican confederation in history", [15] the chief problem was, in the words of George Washington, "no money". [16] The Continental Congress could print money but it was worthless. Congress could borrow money, but couldn't pay it back. [16] No state paid all their U.S. taxes some paid nothing. Some few paid an amount equal to interest on the national debt owed to their citizens, but no more. [16] No interest was paid on debt owed foreign governments. By 1786, the United States would default on outstanding debts as their dates came due. [16]

Internationally, the United States had little ability to defend its sovereignty. Most of the troops in the 625-man United States Army were deployed facing (but not threatening) British forts on American soil. They had not been paid some were deserting and others threatening mutiny. [17] Spain closed New Orleans to American commerce U.S. officials protested, but to no effect. Barbary pirates began seizing American ships of commerce the Treasury had no funds to pay their ransom. If any military crisis required action, the Congress had no credit or taxing power to finance a response. [16]

Domestically, the Articles of Confederation was failing to bring unity to the diverse sentiments and interests of the various states. Although the Treaty of Paris (1783) was signed between Great Britain and the U.S., and named each of the American states, various states proceeded to violate it. New York and South Carolina repeatedly prosecuted Loyalists for wartime activity and redistributed their lands. [16] Individual state legislatures independently laid embargoes, negotiated directly with foreign authorities, raised armies, and made war, all violating the letter and the spirit of the Articles.

In September 1786, during an inter–state convention to discuss and develop a consensus about reversing the protectionist trade barriers that each state had erected, James Madison questioned whether the Articles of Confederation was a binding compact or even a viable government. Connecticut paid nothing and "positively refused" to pay U.S. assessments for two years. [18] A rumor had it that a "seditious party" of New York legislators had opened a conversation with the Viceroy of Canada. To the south, the British were said to be openly funding Creek Indian raids on Georgia, and the state was under martial law. [19] Additionally, during Shays' Rebellion (August 1786 – June 1787) in Massachusetts, Congress could provide no money to support an endangered constituent state. General Benjamin Lincoln was obliged to raise funds from Boston merchants to pay for a volunteer army. [20]

Congress was paralyzed. It could do nothing significant without nine states, and some legislation required all 13. When a state produced only one member in attendance, its vote was not counted. If a state's delegation was evenly divided, its vote could not be counted towards the nine-count requirement. [21] The Congress of the Confederation had "virtually ceased trying to govern". [22] The vision of a "respectable nation" among nations seemed to be fading in the eyes of revolutionaries such as George Washington, Benjamin Franklin, and Rufus King. Their dream of a republic, a nation without hereditary rulers, with power derived from the people in frequent elections, was in doubt. [23] [24]

On February 21, 1787, the Confederation Congress called a convention of state delegates at Philadelphia to propose a plan of government. [25] Unlike earlier attempts, the convention was not meant for new laws or piecemeal alterations, but for the "sole and express purpose of revising the Articles of Confederation". The convention was not limited to commerce rather, it was intended to "render the federal constitution adequate to the exigencies of government and the preservation of the Union." The proposal might take effect when approved by Congress and the states. [26]

1787 drafting

On the appointed day, May 14, 1787, only the Virginia and Pennsylvania delegations were present, and so the convention's opening meeting was postponed for lack of a quorum. [27] A quorum of seven states met and deliberations began on May 25. Eventually twelve states were represented 74 delegates were named, 55 attended and 39 signed. [28] The delegates were generally convinced that an effective central government with a wide range of enforceable powers must replace the weaker Congress established by the Articles of Confederation.

Two plans for structuring the federal government arose at the convention's outset:

  • The Virginia Plan (also known as the Large State Plan or the Randolph Plan) proposed that the legislative department of the national government be composed of a Bicameral Congress, with both chambers elected with apportionment according to population. Generally favoring the most highly populated states, it used the philosophy of John Locke to rely on consent of the governed, Montesquieu for divided government, and Edward Coke to emphasize civil liberties. [29]
  • The New Jersey Plan proposed that the legislative department be a unicameral body with one vote per state. Generally favoring the less-populous states, it used the philosophy of English Whigs such as Edmund Burke to rely on received procedure and William Blackstone to emphasize sovereignty of the legislature. This position reflected the belief that the states were independent entities and, as they entered the United States of America freely and individually, remained so. [30]

On May 31, the Convention devolved into a "Committee of the Whole" to consider the Virginia Plan. On June 13, the Virginia resolutions in amended form were reported out of committee. The New Jersey Plan was put forward in response to the Virginia Plan.

A "Committee of Eleven" (one delegate from each state represented) met from July 2 to 16 [31] to work out a compromise on the issue of representation in the federal legislature. All agreed to a republican form of government grounded in representing the people in the states. For the legislature, two issues were to be decided: how the votes were to be allocated among the states in the Congress, and how the representatives should be elected. In its report, now known as the Connecticut Compromise (or "Great Compromise"), the committee proposed proportional representation for seats in the House of Representatives based on population (with the people voting for representatives), and equal representation for each State in the Senate (with each state's legislators generally choosing their respective senators), and that all money bills would originate in the House. [32]

The Great Compromise ended the stalemate between "patriots" and "nationalists", leading to numerous other compromises in a spirit of accommodation. There were sectional interests to be balanced by the Three-Fifths Compromise reconciliation on Presidential term, powers, and method of selection and jurisdiction of the federal judiciary.

On July 24, a "Committee of Detail"—John Rutledge (South Carolina), Edmund Randolph (Virginia), Nathaniel Gorham (Massachusetts), Oliver Ellsworth (Connecticut), and James Wilson (Pennsylvania)—was elected to draft a detailed constitution reflective of the Resolutions passed by the convention up to that point. [33] The Convention recessed from July 26 to August 6 to await the report of this "Committee of Detail". Overall, the report of the committee conformed to the resolutions adopted by the convention, adding some elements. A twenty-three article (plus preamble) constitution was presented. [34]

From August 6 to September 10, the report of the committee of detail was discussed, section by section and clause by clause. Details were attended to, and further compromises were effected. [31] [33] Toward the close of these discussions, on September 8, a "Committee of Style and Arrangement"—Alexander Hamilton (New York), William Samuel Johnson (Connecticut), Rufus King (Massachusetts), James Madison (Virginia), and Gouverneur Morris (Pennsylvania)—was appointed to distill a final draft constitution from the twenty-three approved articles. [33] The final draft, presented to the convention on September 12, contained seven articles, a preamble and a closing endorsement, of which Morris was the primary author. [28] The committee also presented a proposed letter to accompany the constitution when delivered to Congress. [35]

The final document, engrossed by Jacob Shallus, [36] was taken up on Monday, September 17, at the convention's final session. Several of the delegates were disappointed in the result, a makeshift series of unfortunate compromises. Some delegates left before the ceremony and three others refused to sign. Of the thirty-nine signers, Benjamin Franklin summed up, addressing the convention: "There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them." He would accept the Constitution, "because I expect no better and because I am not sure that it is not the best". [37]

The advocates of the Constitution were anxious to obtain unanimous support of all twelve states represented in the convention. Their accepted formula for the closing endorsement was "Done in Convention, by the unanimous consent of the States present." At the end of the convention, the proposal was agreed to by eleven state delegations and the lone remaining delegate from New York, Alexander Hamilton. [38]

1788 ratification

Transmitted to the Congress of the Confederation, then sitting in New York City, it was within the power of Congress to expedite or block ratification of the proposed Constitution. The new frame of government that the Philadelphia Convention presented was technically only a revision of the Articles of Confederation. After several days of debate, Congress voted to transmit the document to the thirteen states for ratification according to the process outlined in its Article VII. Each state legislature was to call elections for a "Federal Convention" to ratify the new Constitution, rather than consider ratification itself a departure from the constitutional practice of the time, designed to expand the franchise in order to more clearly embrace "the people". The frame of government itself was to go into force among the States so acting upon the approval of nine (i.e. two-thirds of the 13) states also a departure from constitutional practice, as the Articles of Confederation could be amended only by unanimous vote of all the states.

Three members of the Convention—Madison, Gorham, and King—were also Members of Congress. They proceeded at once to New York, where Congress was in session, to placate the expected opposition. Aware of their vanishing authority, Congress, on September 28, after some debate, resolved unanimously to submit the Constitution to the States for action, "in conformity to the resolves of the Convention", [39] but with no recommendation either for or against its adoption.

Two parties soon developed, one in opposition, the Anti-Federalists, and one in support, the Federalists, of the Constitution and the Constitution was debated, criticized, and expounded upon clause by clause. Hamilton, Madison, and Jay, under the name of Publius, wrote a series of commentaries, now known as The Federalist Papers, in support of ratification in the state of New York, at that time a hotbed of anti-Federalism. These commentaries on the Constitution, written during the struggle for ratification, have been frequently cited by the Supreme Court as an authoritative contemporary interpretation of the meaning of its provisions. The dispute over additional powers for the central government was close, and in some states, ratification was effected only after a bitter struggle in the state convention itself.

On June 21, 1788, the constitution had been ratified by the minimum of nine states required under Article VII. Towards the end of July, and with eleven states then having ratified, the process of organizing the new government began. The Continental Congress, which still functioned at irregular intervals, passed a resolution on September 13, 1788, to put the new Constitution into operation with the eleven states that had then ratified it. [40] The federal government began operations under the new form of government on March 4, 1789. However, the initial meeting of each chamber of Congress had to be adjourned due to lack of a quorum. [41] George Washington was inaugurated as the nation's first president 8 weeks later, on April 30. The final two states both ratified the Constitution subsequently: North Carolina on November 21, 1789 and Rhode Island on May 29, 1790.

Several ideas in the Constitution were new. These were associated with the combination of consolidated government along with federal relationships with constituent states.

The Due Process Clause of the Constitution was partly based on common law and on Magna Carta (1215), which had become a foundation of English liberty against arbitrary power wielded by a ruler.

Among the most prominent political theorists of the late eighteenth century were William Blackstone, John Locke, and Montesquieu. [42]

Both the influence of Edward Coke and William Blackstone were evident at the convention. In his Institutes of the Lawes of England, Edward Coke interpreted Magna Carta protections and rights to apply not just to nobles, but to all British subjects. In writing the Virginia Charter of 1606, he enabled the King in Parliament to give those to be born in the colonies all rights and liberties as though they were born in England. William Blackstone's Commentaries on the Laws of England were the most influential books on law in the new republic.

British political philosopher John Locke following the Glorious Revolution (1688) was a major influence expanding on the contract theory of government advanced by Thomas Hobbes. Locke advanced the principle of consent of the governed in his Two Treatises of Government. Government's duty under a social contract among the sovereign people was to serve the people by protecting their rights. These basic rights were life, liberty and property.

Montesquieu's influence on the framers is evident in Madison's Federalist No. 47 and Hamilton's Federalist No. 78. Jefferson, Adams, and Mason were known to read Montesquieu. [43] Supreme Court Justices, the ultimate interpreters of the Constitution, have cited Montesquieu throughout the Court's history. [44] (See, e.g., Green v. Biddle , 21 U.S. 1, 1, 36 (1823). United States v. Wood , 39 U.S. 430, 438 (1840). Myers v. United States , 272 U.S. 52, 116 (1926). Nixon v. Administrator of General Services , 433 U.S. 425, 442 (1977). Bank Markazi v. Peterson , 136 U.S. 1310, 1330 (2016).) Montesquieu emphasized the need for balanced forces pushing against each other to prevent tyranny (reflecting the influence of Polybius's 2nd century BC treatise on the checks and balances of the Roman Republic). In his The Spirit of the Laws, Montesquieu argues that the separation of state powers should be by its service to the people's liberty: legislative, executive and judicial.

A substantial body of thought had been developed from the literature of republicanism in the United States, including work by John Adams and applied to the creation of state constitutions.

The constitution was a federal one, and was influenced by the study of other federations, both ancient and extant.

The United States Bill of Rights consists of 10 amendments added to the Constitution in 1791, as supporters of the Constitution had promised critics during the debates of 1788. [45] The English Bill of Rights (1689) was an inspiration for the American Bill of Rights. Both require jury trials, contain a right to keep and bear arms, prohibit excessive bail and forbid "cruel and unusual punishments". Many liberties protected by state constitutions and the Virginia Declaration of Rights were incorporated into the Bill of Rights.

Neither the Convention which drafted the Constitution nor the Congress which sent it to the 13 states for ratification in the autumn of 1787, gave it a lead caption. To fill this void, the document was most often titled "A frame of Government" when it was printed for the convenience of ratifying conventions and the information of the public. [46] This Frame of Government consisted of a preamble, seven articles and a signed closing endorsement.

Preamble

The preamble to the Constitution serves as an introductory statement of the document's fundamental purposes and guiding principles. It neither assigns powers to the federal government, [47] nor does it place specific limitations on government action. Rather, it sets out the origin, scope, and purpose of the Constitution. Its origin and authority is in "We, the people of the United States". This echoes the Declaration of Independence. "One people" dissolved their connection with another, and assumed among the powers of the earth, a sovereign nation-state. The scope of the Constitution is twofold. First, "to form a more perfect Union" than had previously existed in the "perpetual Union" of the Articles of Confederation. Second, to "secure the blessings of liberty", which were to be enjoyed by not only the first generation but for all who came after, "our posterity". [48]

Article I

Article I describes the Congress, the legislative branch of the federal government. Section 1, reads, "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The article establishes the manner of election and the qualifications of members of each body. Representatives must be at least 25 years old, be a citizen of the United States for seven years, and live in the state they represent. Senators must be at least 30 years old, be a citizen for nine years, and live in the state they represent.

Article I, Section 8 enumerates the powers delegated to the legislature. Financially, Congress has the power to tax, borrow, pay debt and provide for the common defense and the general welfare to regulate commerce, bankruptcies, and coin money. To regulate internal affairs, it has the power to regulate and govern military forces and militias, suppress insurrections and repel invasions. It is to provide for naturalization, standards of weights and measures, post offices and roads, and patents to directly govern the federal district and cessions of land by the states for forts and arsenals. Internationally, Congress has the power to define and punish piracies and offenses against the Law of Nations, to declare war and make rules of war. The final Necessary and Proper Clause, also known as the Elastic Clause, expressly confers incidental powers upon Congress without the Articles' requirement for express delegation for each and every power. Article I, Section 9 lists eight specific limits on congressional power.

The Supreme Court has sometimes broadly interpreted the Commerce Clause and the Necessary and Proper Clause in Article One to allow Congress to enact legislation that is neither expressly allowed by the enumerated powers nor expressly denied in the limitations on Congress. In McCulloch v. Maryland (1819), the Supreme Court read the Necessary and Proper Clause to permit the federal government to take action that would "enable [it] to perform the high duties assigned to it [by the Constitution] in the manner most beneficial to the people", [49] even if that action is not itself within the enumerated powers. Chief Justice Marshall clarified: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional." [49]

Article II

Article II describes the office, qualifications, and duties of the President of the United States and the Vice President. The President is head of the executive branch of the federal government, as well as the nation's head of state and head of government.

Article two is modified by the 12th Amendment which tacitly acknowledges political parties, and the 25th Amendment relating to office succession. The president is to receive only one compensation from the federal government. The inaugural oath is specified to preserve, protect and defend the Constitution.

The president is the Commander in Chief of the United States Armed Forces, as well as of state militias when they are mobilized. He or she makes treaties with the advice and consent of a two-thirds quorum of the Senate. To administer the federal government, the president commissions all the offices of the federal government as Congress directs he or she may require the opinions of its principal officers and make "recess appointments" for vacancies that may happen during the recess of the Senate. The president is to see that the laws are faithfully executed, though he or she may grant reprieves and pardons except regarding Congressional impeachment of himself or other federal officers. The president reports to Congress on the State of the Union, and by the Recommendation Clause, recommends "necessary and expedient" national measures. The president may convene and adjourn Congress under special circumstances.

Section 4 provides for the removal of the president and other federal officers. The president is removed on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Article III

Article III describes the court system (the judicial branch), including the Supreme Court. The article describes the kinds of cases the court takes as original jurisdiction. Congress can create lower courts and an appeals process, and enacts law defining crimes and punishments. Article Three also protects the right to trial by jury in all criminal cases, and defines the crime of treason.

Section 1 vests the judicial power of the United States in federal courts, and with it, the authority to interpret and apply the law to a particular case. Also included is the power to punish, sentence, and direct future action to resolve conflicts. The Constitution outlines the U.S. judicial system. In the Judiciary Act of 1789, Congress began to fill in details. Currently, Title 28 of the U.S. Code [50] describes judicial powers and administration.

As of the First Congress, the Supreme Court justices rode circuit to sit as panels to hear appeals from the district courts. [b] In 1891, Congress enacted a new system. District courts would have original jurisdiction. Intermediate appellate courts (circuit courts) with exclusive jurisdiction heard regional appeals before consideration by the Supreme Court. The Supreme Court holds discretionary jurisdiction, meaning that it does not have to hear every case that is brought to it. [50]

To enforce judicial decisions, the Constitution grants federal courts both criminal contempt and civil contempt powers. Other implied powers include injunctive relief and the habeas corpus remedy. The Court may imprison for contumacy, bad-faith litigation, and failure to obey a writ of mandamus. Judicial power includes that granted by Acts of Congress for rules of law and punishment. Judicial power also extends to areas not covered by statute. Generally, federal courts cannot interrupt state court proceedings. [50]

Clause 1 of Section 2 authorizes the federal courts to hear actual cases and controversies only. Their judicial power does not extend to cases that are hypothetical, or which are proscribed due to standing, mootness, or ripeness issues. Generally, a case or controversy requires the presence of adverse parties who have some interest genuinely at stake in the case. [c]

Clause 2 of Section 2 provides that the Supreme Court has original jurisdiction in cases involving ambassadors, ministers, and consuls, for all cases respecting foreign nation-states, [51] and also in those controversies which are subject to federal judicial power because at least one state is a party. Cases arising under the laws of the United States and its treaties come under the jurisdiction of federal courts. Cases under international maritime law and conflicting land grants of different states come under federal courts. Cases between U.S. citizens in different states, and cases between U.S. citizens and foreign states and their citizens, come under federal jurisdiction. The trials will be in the state where the crime was committed. [50]

No part of the Constitution expressly authorizes judicial review, but the Framers did contemplate the idea, and precedent has since established that the courts could exercise judicial review over the actions of Congress or the executive branch. Two conflicting federal laws are under "pendent" jurisdiction if one presents a strict constitutional issue. Federal court jurisdiction is rare when a state legislature enacts something as under federal jurisdiction. [d] To establish a federal system of national law, considerable effort goes into developing a spirit of comity between federal government and states. By the doctrine of 'Res judicata', federal courts give "full faith and credit" to State Courts. [e] The Supreme Court will decide Constitutional issues of state law only on a case-by-case basis, and only by strict Constitutional necessity, independent of state legislators' motives, their policy outcomes or its national wisdom. [f]

Section 3 bars Congress from changing or modifying Federal law on treason by simple majority statute. This section also defines treason, as an overt act of making war or materially helping those at war with the United States. Accusations must be corroborated by at least two witnesses. Congress is a political body and political disagreements routinely encountered should never be considered as treason. This allows for nonviolent resistance to the government because opposition is not a life or death proposition. However, Congress does provide for other lesser subversive crimes such as conspiracy. [g]

Article IV

Article IV outlines the relations among the states and between each state and the federal government. In addition, it provides for such matters as admitting new states and border changes between the states. For instance, it requires states to give "full faith and credit" to the public acts, records, and court proceedings of the other states. Congress is permitted to regulate the manner in which proof of such acts may be admitted. The "privileges and immunities" clause prohibits state governments from discriminating against citizens of other states in favor of resident citizens. For instance, in criminal sentencing, a state may not increase a penalty on the grounds that the convicted person is a non-resident.

It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel amongst the states. Today, this provision is sometimes taken for granted, but in the days of the Articles of Confederation, crossing state lines was often arduous and costly. The Territorial Clause gives Congress the power to make rules for disposing of federal property and governing non-state territories of the United States. Finally, the fourth section of Article Four requires the United States to guarantee to each state a republican form of government, and to protect them from invasion and violence.

Article V

Article V outlines the process for amending the Constitution. Eight state constitutions in effect in 1787 included an amendment mechanism. Amendment making power rested with the legislature in three of the states and in the other five it was given to specially elected conventions. The Articles of Confederation provided that amendments were to be proposed by Congress and ratified by the unanimous vote of all 13 state legislatures. This proved to be a major flaw in the Articles, as it created an insurmountable obstacle to constitutional reform. The amendment process crafted during the Philadelphia Constitutional Convention was, according to The Federalist No. 43, designed to establish a balance between pliancy and rigidity: [52]

It guards equally against that extreme facility which would render the Constitution too mutable and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the General and the State Governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.

There are two steps in the amendment process. Proposals to amend the Constitution must be properly adopted and ratified before they change the Constitution. First, there are two procedures for adopting the language of a proposed amendment, either by (a) Congress, by two-thirds majority in both the Senate and the House of Representatives, or (b) national convention (which shall take place whenever two-thirds of the state legislatures collectively call for one). Second, there are two procedures for ratifying the proposed amendment, which requires three-fourths of the states' (presently 38 of 50) approval: (a) consent of the state legislatures, or (b) consent of state ratifying conventions. The ratification method is chosen by Congress for each amendment. [53] State ratifying conventions were used only once, for the Twenty-first Amendment. [54]

Presently, the Archivist of the United States is charged with responsibility for administering the ratification process under the provisions of 1 U.S. Code § 106b. The Archivist submits the proposed amendment to the states for their consideration by sending a letter of notification to each Governor. Each Governor then formally submits the amendment to their state's legislature. When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state's action. Ratification documents are examined by the Office of the Federal Register for facial legal sufficiency and an authenticating signature. [55]

Article Five ends by shielding certain clauses in the new frame of government from being amended. Article One, Section 9, Clause 1 prevents Congress from passing any law that would restrict the importation of slaves into the United States prior to 1808, plus the fourth clause from that same section, which reiterates the Constitutional rule that direct taxes must be apportioned according to state populations. These clauses were explicitly shielded from Constitutional amendment prior to 1808. On January 1, 1808, the first day it was permitted to do so, Congress approved legislation prohibiting the importation of slaves into the country. On February 3, 1913, with ratification of the Sixteenth Amendment, Congress gained the authority to levy an income tax without apportioning it among the states or basing it on the United States Census. The third textually entrenched provision is Article One, Section 3, Clauses 1, which provides for equal representation of the states in the Senate. The shield protecting this clause from the amendment process ("no state, without its consent, shall be deprived of its equal Suffrage in the Senate") is less absolute but it is permanent.

Article VI

Article VI establishes the Constitution, and all federal laws and treaties of the United States made according to it, to be the supreme law of the land, and that "the judges in every state shall be bound thereby, any thing in the laws or constitutions of any state notwithstanding." It validates national debt created under the Articles of Confederation and requires that all federal and state legislators, officers, and judges take oaths or affirmations to support the Constitution. This means that the states' constitutions and laws should not conflict with the laws of the federal constitution and that in case of a conflict, state judges are legally bound to honor the federal laws and constitution over those of any state. Article Six also states "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Article VII

Article VII describes the process for establishing the proposed new frame of government. Anticipating that the influence of many state politicians would be Antifederalist, delegates to the Philadelphia Convention provided for ratification of the Constitution by popularly elected ratifying conventions in each state. The convention method also made it possible that judges, ministers and others ineligible to serve in state legislatures, could be elected to a convention. Suspecting that Rhode Island, at least, might not ratify, delegates decided that the Constitution would go into effect as soon as nine states (two-thirds rounded up) ratified. [56] Once ratified by this minimum number of states, it was anticipated that the proposed Constitution would become this Constitution between the nine or more that signed. It would not cover the four or fewer states that might not have signed. [57]

Closing endorsement

The signing of the United States Constitution occurred on September 17, 1787, when 39 delegates to the Constitutional Convention endorsed the constitution created during the convention. In addition to signatures, this closing endorsement, the Constitution's eschatocol, included a brief declaration that the delegates' work has been successfully completed and that those whose signatures appear on it subscribe to the final document. Included are a statement pronouncing the document's adoption by the states present, a formulaic dating of its adoption, and the signatures of those endorsing it. Additionally, the convention's secretary, William Jackson, added a note to verify four amendments made by hand to the final document, and signed the note to authenticate its validity. [58]

The language of the concluding endorsement, conceived by Gouverneur Morris and presented to the convention by Benjamin Franklin, was made intentionally ambiguous in hopes of winning over the votes of dissenting delegates. Advocates for the new frame of government, realizing the impending difficulty of obtaining the consent of the states needed to make it operational, were anxious to obtain the unanimous support of the delegations from each state. It was feared that many of the delegates would refuse to give their individual assent to the Constitution. Therefore, in order that the action of the convention would appear to be unanimous, the formula, Done in convention by the unanimous consent of the states present . was devised. [59]

The document is dated: "the Seventeenth Day of September in the Year of our Lord" 1787, and "of the Independence of the United States of America the Twelfth." This two-fold epoch dating serves to place the Constitution in the context of the religious traditions of Western civilization and, at the same time, links it to the regime principles proclaimed in the Declaration of Independence. This dual reference can also be found in the Articles of Confederation and the Northwest Ordinance. [59]

The closing endorsement serves an authentication function only. It neither assigns powers to the federal government nor does it provide specific limitations on government action. It does, however, provide essential documentation of the Constitution's validity, a statement of "This is what was agreed to." It records who signed the Constitution, and when and where.

The procedure for amending the Constitution is outlined in Article Five (see above). The process is overseen by the archivist of the United States. Between 1949 and 1985, it was overseen by the administrator of General Services, and before that by the secretary of state. [55]

Under Article Five, a proposal for an amendment must be adopted either by Congress or by a national convention, but as of 2020 [update] all amendments have gone through Congress. [55] The proposal must receive two-thirds of the votes of both houses to proceed. It is passed as a joint resolution, but is not presented to the president, who plays no part in the process. Instead, it is passed to the Office of the Federal Register, which copies it in slip law format and submits it to the states. [55] Congress decides whether the proposal is to be ratified in the state legislature or by a state ratifying convention. To date all amendments have been ratified by the state legislatures except one, the Twenty-first Amendment. [53]

A proposed amendment becomes an operative part of the Constitution as soon as it is ratified by three-fourths of the States (currently 38 of the 50 states). There is no further step. The text requires no additional action by Congress or anyone else after ratification by the required number of states. [60] Thus, when the Office of the Federal Register verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the nation's frame of government. This certification is published in the Federal Register and United States Statutes at Large and serves as official notice to Congress and to the nation that the ratification process has been successfully completed. [55]

The Constitution has twenty-seven amendments. Structurally, the Constitution's original text and all prior amendments remain untouched. The precedent for this practice was set in 1789, when Congress considered and proposed the first several Constitutional amendments. Among these, Amendments 1–10 are collectively known as the Bill of Rights, and Amendments 13–15 are known as the Reconstruction Amendments. Excluding the Twenty-seventh Amendment, which was pending before the states for 202 years, 225 days, the longest pending amendment that was successfully ratified was the Twenty-second Amendment, which took 3 years, 343 days. The Twenty-sixth Amendment was ratified in the shortest time, 100 days. The average ratification time for the first twenty-six amendments was 1 year, 252 days for all twenty-seven, 9 years, 48 days.

Safeguards of liberty (Amendments 1, 2, and 3)

The First Amendment (1791) prohibits Congress from obstructing the exercise of certain individual freedoms: freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and right to petition. Its Free Exercise Clause guarantees a person's right to hold whatever religious beliefs they want, and to freely exercise that belief, and its Establishment Clause prevents the federal government from creating an official national church or favoring one set of religious beliefs over another. The amendment guarantees an individual's right to express and to be exposed to a wide range of opinions and views. It was intended to ensure a free exchange of ideas, even unpopular ones. It also guarantees an individual's right to physically gather or associate with others in groups for economic, political or religious purposes. Additionally, it guarantees an individual's right to petition the government for a redress of grievances. [61]

The Second Amendment (1791) protects the right of individuals [62] [63] to keep and bear arms. [64] [65] [66] [67] Although the Supreme Court has ruled that this right applies to individuals, not merely to collective militias, it has also held that the government may regulate or place some limits on the manufacture, ownership and sale of firearms or other weapons. [68] [69] Requested by several states during the Constitutional ratification debates, the amendment reflected the lingering resentment over the widespread efforts of the British to confiscate the colonists' firearms at the outbreak of the Revolutionary War. Patrick Henry had rhetorically asked, shall we be stronger, "when we are totally disarmed, and when a British Guard shall be stationed in every house?" [70]

The Third Amendment (1791) prohibits the federal government from forcing individuals to provide lodging to soldiers in their homes during peacetime without their consent. Requested by several states during the Constitutional ratification debates, the amendment reflected the lingering resentment over the Quartering Acts passed by the British Parliament during the Revolutionary War, which had allowed British soldiers to take over private homes for their own use. [71]

Safeguards of justice (Amendments 4, 5, 6, 7, and 8)

The Fourth Amendment (1791) protects people against unreasonable searches and seizures of either self or property by government officials. A search can mean everything from a frisking by a police officer or to a demand for a blood test to a search of an individual's home or car. A seizure occurs when the government takes control of an individual or something in his or her possession. Items that are seized often are used as evidence when the individual is charged with a crime. It also imposes certain limitations on police investigating a crime and prevents the use of illegally obtained evidence at trial. [72]

The Fifth Amendment (1791) establishes the requirement that a trial for a major crime may commence only after an indictment has been handed down by a grand jury protects individuals from double jeopardy, being tried and put in danger of being punished more than once for the same criminal act prohibits punishment without due process of law, thus protecting individuals from being imprisoned without fair procedures and provides that an accused person may not be compelled to reveal to the police, prosecutor, judge, or jury any information that might incriminate or be used against him or her in a court of law. Additionally, the Fifth Amendment also prohibits government from taking private property for public use without "just compensation", the basis of eminent domain in the United States. [73]

The Sixth Amendment (1791) provides several protections and rights to an individual accused of a crime. The accused has the right to a fair and speedy trial by a local and impartial jury. Likewise, a person has the right to a public trial. This right protects defendants from secret proceedings that might encourage abuse of the justice system, and serves to keep the public informed. This amendment also guarantees a right to legal counsel if accused of a crime, guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused, and guarantees the accused a right to know the charges against them. In 1966, the Supreme Court ruled that, with the Fifth Amendment, this amendment requires what has become known as the Miranda warning. [74]

The Seventh Amendment (1791) extends the right to a jury trial to federal civil cases, and inhibits courts from overturning a jury's findings of fact. Although the Seventh Amendment itself says that it is limited to "suits at common law", meaning cases that triggered the right to a jury under English law, the amendment has been found to apply in lawsuits that are similar to the old common law cases. For example, the right to a jury trial applies to cases brought under federal statutes that prohibit race or gender discrimination in housing or employment. Importantly, this amendment guarantees the right to a jury trial only in federal court, not in state court. [75]

The Eighth Amendment (1791) protects people from having bail or fines set at an amount so high that it would be impossible for all but the richest defendants to pay and also protects people from being subjected to cruel and unusual punishment. Although this phrase originally was intended to outlaw certain gruesome methods of punishment, it has been broadened over the years to protect against punishments that are grossly disproportionate to or too harsh for the particular crime. This provision has also been used to challenge prison conditions such as extremely unsanitary cells, overcrowding, insufficient medical care and deliberate failure by officials to protect inmates from one another. [76]

Unenumerated rights and reserved powers (Amendments 9 and 10)

The Ninth Amendment (1791) declares that individuals have other fundamental rights, in addition to those stated in the Constitution. During the Constitutional ratification debates Anti-Federalists argued that a Bill of Rights should be added. The Federalists opposed it on grounds that a list would necessarily be incomplete but would be taken as explicit and exhaustive, thus enlarging the power of the federal government by implication. The Anti-Federalists persisted, and several state ratification conventions refused to ratify the Constitution without a more specific list of protections, so the First Congress added what became the Ninth Amendment as a compromise. Because the rights protected by the Ninth Amendment are not specified, they are referred to as "unenumerated". The Supreme Court has found that unenumerated rights include such important rights as the right to travel, the right to vote, the right to privacy, and the right to make important decisions about one's health care or body. [77]

The Tenth Amendment (1791) was included in the Bill of Rights to further define the balance of power between the federal government and the states. The amendment states that the federal government has only those powers specifically granted by the Constitution. These powers include the power to declare war, to collect taxes, to regulate interstate business activities and others that are listed in the articles or in subsequent constitutional amendments. Any power not listed is, says the Tenth Amendment, left to the states or the people. While there is no specific list of what these "reserved powers" may be, the Supreme Court has ruled that laws affecting family relations, commerce within a state's own borders, and local law enforcement activities, are among those specifically reserved to the states or the people. [78]

Governmental authority (Amendments 11, 16, 18, and 21)

The Eleventh Amendment (1795) specifically prohibits federal courts from hearing cases in which a state is sued by an individual from another state or another country, thus extending to the states sovereign immunity protection from certain types of legal liability. Article Three, Section 2, Clause 1 has been affected by this amendment, which also overturned the Supreme Court's decision in Chisholm v. Georgia (1793). [79] [80]

The Sixteenth Amendment (1913) removed existing Constitutional constraints that limited the power of Congress to lay and collect taxes on income. Specifically, the apportionment constraints delineated in Article 1, Section 9, Clause 4 have been removed by this amendment, which also overturned an 1895 Supreme Court decision, in Pollock v. Farmers' Loan & Trust Co., that declared an unapportioned federal income tax on rents, dividends, and interest unconstitutional. This amendment has become the basis for all subsequent federal income tax legislation and has greatly expanded the scope of federal taxing and spending in the years since. [81]

The Eighteenth Amendment (1919) prohibited the making, transporting, and selling of alcoholic beverages nationwide. It also authorized Congress to enact legislation enforcing this prohibition. Adopted at the urging of a national temperance movement, proponents believed that the use of alcohol was reckless and destructive and that prohibition would reduce crime and corruption, solve social problems, decrease the need for welfare and prisons, and improve the health of all Americans. During prohibition, it is estimated that alcohol consumption and alcohol related deaths declined dramatically. But prohibition had other, more negative consequences. The amendment drove the lucrative alcohol business underground, giving rise to a large and pervasive black market. In addition, prohibition encouraged disrespect for the law and strengthened organized crime. Prohibition came to an end in 1933, when this amendment was repealed. [82]

The Twenty-first Amendment (1933) repealed the Eighteenth Amendment and returned the regulation of alcohol to the states. Each state sets its own rules for the sale and importation of alcohol, including the drinking age. Because a federal law provides federal funds to states that prohibit the sale of alcohol to minors under the age of twenty-one, all fifty states have set their drinking age there. Rules about how alcohol is sold vary greatly from state to state. [83]

Safeguards of civil rights (Amendments 13, 14, 15, 19, 23, 24, and 26)

The Thirteenth Amendment (1865) abolished slavery and involuntary servitude, except as punishment for a crime, and authorized Congress to enforce abolition. Though millions of slaves had been declared free by the 1863 Emancipation Proclamation, their post Civil War status was unclear, as was the status of other millions. [84] Congress intended the Thirteenth Amendment to be a proclamation of freedom for all slaves throughout the nation and to take the question of emancipation away from politics. This amendment rendered inoperative or moot several of the original parts of the constitution. [85]

The Fourteenth Amendment (1868) granted United States citizenship to former slaves and to all persons "subject to U.S. jurisdiction". It also contained three new limits on state power: a state shall not violate a citizen's privileges or immunities shall not deprive any person of life, liberty, or property without due process of law and must guarantee all persons equal protection of the laws. These limitations dramatically expanded the protections of the Constitution. This amendment, according to the Supreme Court's Doctrine of Incorporation, makes most provisions of the Bill of Rights applicable to state and local governments as well. It superseded the mode of apportionment of representatives delineated in Article 1, Section 2, Clause 3, and also overturned the Supreme Court's decision in Dred Scott v. Sandford (1857). [86]

The Fifteenth Amendment (1870) prohibits the use of race, color, or previous condition of servitude in determining which citizens may vote. The last of three post Civil War Reconstruction Amendments, it sought to abolish one of the key vestiges of slavery and to advance the civil rights and liberties of former slaves. [87]

The Nineteenth Amendment (1920) prohibits the government from denying women the right to vote on the same terms as men. Prior to the amendment's adoption, only a few states permitted women to vote and to hold office. [88]

The Twenty-third Amendment (1961) extends the right to vote in presidential elections to citizens residing in the District of Columbia by granting the District electors in the Electoral College, as if it were a state. When first established as the nation's capital in 1800, the District of Columbia's five thousand residents had neither a local government, nor the right to vote in federal elections. By 1960 the population of the District had grown to over 760,000. [89]

The Twenty-fourth Amendment (1964) prohibits a poll tax for voting. Although passage of the Thirteenth, Fourteenth, and Fifteenth Amendments helped remove many of the discriminatory laws left over from slavery, they did not eliminate all forms of discrimination. Along with literacy tests and durational residency requirements, poll taxes were used to keep low-income (primarily African American) citizens from participating in elections. The Supreme Court has since struck down these discriminatory measures, opening democratic participation to all. [90]

The Twenty-sixth Amendment (1971) prohibits the government from denying the right of United States citizens, eighteen years of age or older, to vote on account of age. The drive to lower the voting age was driven in large part by the broader student activism movement protesting the Vietnam War. It gained strength following the Supreme Court's decision in Oregon v. Mitchell (1970). [91]

Government processes and procedures (Amendments 12, 17, 20, 22, 25, and 27)

The Twelfth Amendment (1804) modifies the way the Electoral College chooses the President and Vice President. It stipulates that each elector must cast a distinct vote for president and Vice President, instead of two votes for president. It also suggests that the President and Vice President should not be from the same state. Article II, Section 1, Clause 3 is superseded by this amendment, which also extends the eligibility requirements to become president to the Vice President. [92]

The Seventeenth Amendment (1913) modifies the way senators are elected. It stipulates that senators are to be elected by direct popular vote. The amendment supersedes Article 1, Section 2, Clauses 1 and 2, under which the two senators from each state were elected by the state legislature. It also allows state legislatures to permit their governors to make temporary appointments until a special election can be held. [93]

The Twentieth Amendment (1933) changes the date on which a new president, Vice President and Congress take office, thus shortening the time between Election Day and the beginning of Presidential, Vice Presidential and Congressional terms. [94] Originally, the Constitution provided that the annual meeting was to be on the first Monday in December unless otherwise provided by law. This meant that, when a new Congress was elected in November, it did not come into office until the following March, with a "lame duck" Congress convening in the interim. By moving the beginning of the president's new term from March 4 to January 20 (and in the case of Congress, to January 3), proponents hoped to put an end to lame duck sessions, while allowing for a speedier transition for the new administration and legislators. [95]

The Twenty-second Amendment (1951) limits an elected president to two terms in office, a total of eight years. However, under some circumstances it is possible for an individual to serve more than eight years. Although nothing in the original frame of government limited how many presidential terms one could serve, the nation's first president, George Washington, declined to run for a third term, suggesting that two terms of four years were enough for any president. This precedent remained an unwritten rule of the presidency until broken by Franklin D. Roosevelt, who was elected to a third term as president 1940 and in 1944 to a fourth. [96]

The Twenty-fifth Amendment (1967) clarifies what happens upon the death, removal, or resignation of the President or Vice President and how the Presidency is temporarily filled if the President becomes disabled and cannot fulfill the responsibilities of the office. It supersedes the ambiguous succession rule established in Article II, Section 1, Clause 6. A concrete plan of succession has been needed on multiple occasions since 1789. However, for nearly 20% of U.S. history, there has been no vice president in office who can assume the presidency. [97]

The Twenty-seventh Amendment (1992) prevents members of Congress from granting themselves pay raises during the current session. Rather, any raises that are adopted must take effect during the next session of Congress. Its proponents believed that Federal legislators would be more likely to be cautious about increasing congressional pay if they have no personal stake in the vote. Article One, section 6, Clause 1 has been affected by this amendment, which remained pending for over two centuries as it contained no time limit for ratification. [98]

Collectively, members of the House and Senate typically propose around 150 amendments during each two-year term of Congress. [99] Most however, never get out of the Congressional committees in which they were proposed, and only a fraction of those that do receive enough support to win Congressional approval to actually go through the constitutional ratification process.

Six amendments approved by Congress and proposed to the states for consideration have not been ratified by the required number of states to become part of the Constitution. Four of these are technically still pending, as Congress did not set a time limit (see also Coleman v. Miller) for their ratification. The other two are no longer pending, as both had a time limit attached and in both cases the time period set for their ratification expired.

Pending

  • The Congressional Apportionment Amendment (proposed 1789) would, if ratified, establish a formula for determining the appropriate size of the House of Representatives and the appropriate apportionment of representatives among the states following each constitutionally mandated decennial census. At the time it was sent to the states for ratification, an affirmative vote by ten states would have made this amendment operational. In 1791 and 1792, when Vermont and Kentucky joined the Union, the number climbed to twelve. Thus, the amendment remained one state shy of the number needed for it to become part of the Constitution. No additional states have ratified this amendment since. To become part of the Constitution today, ratification by an additional twenty-seven would be required. The Apportionment Act of 1792 apportioned the House of Representatives at 33,000 persons per representative in consequence of the 1790 census. Reapportionment has since been effected by statute.
  • The Titles of Nobility Amendment (proposed 1810) would, if ratified, strip United States citizenship from any citizen who accepted a title of nobility from a foreign country. When submitted to the states, ratification by thirteen states was required for it to become part of the Constitution eleven had done so by early 1812. However, with the addition of Louisiana into the Union that year (April 30, 1812), the ratification threshold rose to fourteen. Thus, when New Hampshire ratified it in December 1812, the amendment again came within two states of being ratified. No additional states have ratified this amendment since. To become part of the Constitution today, ratification by an additional twenty-six would be required.
  • The Corwin Amendment (proposed 1861) would, if ratified, shield "domestic institutions" of the states (which in 1861 included slavery) from the constitutional amendment process and from abolition or interference by Congress. This proposal was one of several measures considered by Congress in an ultimately unsuccessful attempt to attract the seceding states back into the Union and to entice border slave states to stay. [100] Five states ratified the amendment in the early 1860s, but none have since. To become part of the Constitution today, ratification by an additional 33 states would be required. The subject of this proposal was subsequently addressed by the 1865 Thirteenth Amendment, which abolished slavery.
  • The Child Labor Amendment (proposed 1924) would, if ratified, specifically authorize Congress to limit, regulate and prohibit labor of persons less than eighteen years of age. The amendment was proposed in response to Supreme Court rulings in Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture Co. (1922) that found federal laws regulating and taxing goods produced by employees under the ages of 14 and 16 unconstitutional. When submitted to the states, ratification by 36 states was required for it to become part of the Constitution, as there were forty-eight states. Twenty-eight had ratified the amendment by early 1937, but none have done so since. To become part of the Constitution today, ratification by an additional ten would be required. [101] A federal statute approved June 25, 1938, regulated the employment of those under 16 or 18 years of age in interstate commerce. The Supreme Court, by unanimous vote in United States v. Darby Lumber Co. (1941), found this law constitutional, effectively overturning Hammer v. Dagenhart. As a result of this development, the movement pushing for the amendment concluded. [102]

Status contested

The Equal Rights Amendment (proposed 1972) would have prohibited deprivation of equality of rights (discrimination) by the federal or state governments on account of sex. A seven-year ratification time limit was initially placed on the amendment, but as the deadline approached, Congress granted a three-year extension. Thirty-five states ratified the proposed amendment prior to the original deadline, three short of the number required for it to be implemented (five of them later voted to rescind their ratification). No further states ratified the amendment within the extended deadline. In 2017, Nevada became the first state to ratify the ERA after the expiration of both deadlines, [103] followed by Illinois in 2018, [104] and Virginia in 2020, [105] [106] purportedly bringing the number of ratifications to 38. However, experts and advocates have acknowledged legal uncertainty about the consequences of these ratifications, due to the expired deadlines and the five states' purported revocations. [h]

No longer pending

The District of Columbia Voting Rights Amendment (proposed 1978) would have granted the District of Columbia full representation in the United States Congress as if it were a state, repealed the Twenty-third Amendment, granted the District unconditional Electoral College voting rights, and allowed its participation in the process by which the Constitution is amended. A seven-year ratification time limit was placed on the amendment. Sixteen states ratified the amendment (twenty-two short of the number required for it to be implemented) prior to the deadline, thus it failed to be adopted.

The way the Constitution is understood is influenced by court decisions, especially those of the Supreme Court. These decisions are referred to as precedents. Judicial review is the power of the Court to examine federal legislation, federal executive, and all state branches of government, to decide their constitutionality, and to strike them down if found unconstitutional.

Judicial review includes the power of the Court to explain the meaning of the Constitution as it applies to particular cases. Over the years, Court decisions on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases have changed the way many constitutional clauses are interpreted, without amendment to the actual text of the Constitution.

Legislation passed to implement the Constitution, or to adapt those implementations to changing conditions, broadens and, in subtle ways, changes the meanings given to the words of the Constitution. Up to a point, the rules and regulations of the many federal executive agencies have a similar effect. If an action of Congress or the agencies is challenged, however, it is the court system that ultimately decides whether these actions are permissible under the Constitution.

The Supreme Court has indicated that once the Constitution has been extended to an area (by Congress or the Courts), its coverage is irrevocable. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say "what the law is". [i]

Scope and theory

Courts established by the Constitution can regulate government under the Constitution, the supreme law of the land. First, they have jurisdiction over actions by an officer of government and state law. Second, federal courts may rule on whether coordinate branches of national government conform to the Constitution. Until the twentieth century, the Supreme Court of the United States may have been the only high tribunal in the world to use a court for constitutional interpretation of fundamental law, others generally depending on their national legislature. [108]

The basic theory of American Judicial review is summarized by constitutional legal scholars and historians as follows: the written Constitution is fundamental law. It can change only by extraordinary legislative process of national proposal, then state ratification. The powers of all departments are limited to enumerated grants found in the Constitution. Courts are expected (a) to enforce provisions of the Constitution as the supreme law of the land, and (b) to refuse to enforce anything in conflict with it. [109]

In Convention. As to judicial review and the Congress, the first proposals by Madison (Va) and Wilson (Pa) called for a supreme court veto over national legislation. In this it resembled the system in New York, where the Constitution of 1777 called for a "Council of Revision" by the Governor and Justices of the state supreme court. The council would review and in a way, veto any passed legislation violating the spirit of the Constitution before it went into effect. The nationalist's proposal in Convention was defeated three times, and replaced by a presidential veto with Congressional over-ride. Judicial review relies on the jurisdictional authority in Article III, and the Supremacy Clause. [110]

The justification for judicial review is to be explicitly found in the open ratifications held in the states and reported in their newspapers. John Marshall in Virginia, James Wilson in Pennsylvania and Oliver Ellsworth of Connecticut all argued for Supreme Court judicial review of acts of state legislature. In Federalist No. 78, Alexander Hamilton advocated the doctrine of a written document held as a superior enactment of the people. "A limited constitution can be preserved in practice no other way" than through courts which can declare void any legislation contrary to the Constitution. The preservation of the people's authority over legislatures rests "particularly with judges". [111] [j]

The Supreme Court was initially made up of jurists who had been intimately connected with the framing of the Constitution and the establishment of its government as law. John Jay (New York), a co-author of The Federalist Papers, served as Chief Justice for the first six years. The second and third Chief Justices, Oliver Ellsworth (Connecticut) and John Rutledge (South Carolina), were delegates to the Constitutional Convention. Washington's recess appointment as Chief Justice who served in 1795. John Marshall (Virginia), the fourth Chief Justice, had served in the Virginia Ratification Convention in 1788. His 34 years of service on the Court would see some of the most important rulings to help establish the nation the Constitution had begun. Other early members of the Supreme Court who had been delegates to the Constitutional Convention included James Wilson (Pennsylvania) for ten years, John Blair Jr. (Virginia) for five, and John Rutledge (South Carolina) for one year as Justice, then Chief Justice in 1795.

Establishment

When John Marshall followed Oliver Ellsworth as Chief Justice of the Supreme Court in 1801, the federal judiciary had been established by the Judiciary Act, but there were few cases, and less prestige. "The fate of judicial review was in the hands of the Supreme Court itself." Review of state legislation and appeals from state supreme courts was understood. But the Court's life, jurisdiction over state legislation was limited. The Marshall Court's landmark Barron v. Baltimore held that the Bill of Rights restricted only the federal government, and not the states. [111]

In the landmark Marbury v. Madison case, the Supreme Court asserted its authority of judicial review over Acts of Congress. Its findings were that Marbury and the others had a right to their commissions as judges in the District of Columbia. Marshall, writing the opinion for the majority, announced his discovered conflict between Section 13 of the Judiciary Act of 1789 and Article III. [k] [113] [l] In this case, both the Constitution and the statutory law applied to the particulars at the same time. "The very essence of judicial duty" according to Marshall was to determine which of the two conflicting rules should govern. The Constitution enumerates powers of the judiciary to extend to cases arising "under the Constitution". Further, justices take a Constitutional oath to uphold it as "Supreme law of the land". [114] Therefore, since the United States government as created by the Constitution is a limited government, the Federal courts were required to choose the Constitution over Congressional law if there were deemed to be a conflict.

"This argument has been ratified by time and by practice . " [m] [n] The Supreme Court did not declare another Act of Congress unconstitutional until the controversial Dred Scott decision in 1857, held after the voided Missouri Compromise statute had already been repealed. In the eighty years following the Civil War to World War II, the Court voided Congressional statutes in 77 cases, on average almost one a year. [116]

Something of a crisis arose when, in 1935 and 1936, the Supreme Court handed down twelve decisions voiding Acts of Congress relating to the New Deal. President Franklin D. Roosevelt then responded with his abortive "court packing plan". Other proposals have suggested a Court super-majority to overturn Congressional legislation, or a Constitutional Amendment to require that the Justices retire at a specified age by law. To date, the Supreme Court's power of judicial review has persisted. [112]

Self-restraint

The power of judicial review could not have been preserved long in a democracy unless it had been "wielded with a reasonable measure of judicial restraint, and with some attention, as Mr. Dooley said, to the election returns." Indeed, the Supreme Court has developed a system of doctrine and practice that self-limits its power of judicial review. [117]

The Court controls almost all of its business by choosing what cases to consider, writs of certiorari. In this way, it can avoid opinions on embarrassing or difficult cases. The Supreme Court limits itself by defining for itself what is a "justiciable question". First, the Court is fairly consistent in refusing to make any "advisory opinions" in advance of actual cases. [o] Second, "friendly suits" between those of the same legal interest are not considered. Third, the Court requires a "personal interest", not one generally held, and a legally protected right must be immediately threatened by government action. Cases are not taken up if the litigant has no standing to sue. Simply having the money to sue and being injured by government action are not enough. [117]

These three procedural ways of dismissing cases have led critics to charge that the Supreme Court delays decisions by unduly insisting on technicalities in their "standards of litigability". They say cases are left unconsidered which are in the public interest, with genuine controversy, and resulting from good faith action. "The Supreme Court is not only a court of law but a court of justice." [118]

Separation of powers

The Supreme Court balances several pressures to maintain its roles in national government. It seeks to be a co-equal branch of government, but its decrees must be enforceable. The Court seeks to minimize situations where it asserts itself superior to either President or Congress, but federal officers must be held accountable. The Supreme Court assumes power to declare acts of Congress as unconstitutional but it self-limits its passing on constitutional questions. [119] But the Court's guidance on basic problems of life and governance in a democracy is most effective when American political life reinforce its rulings. [120]

Justice Brandeis summarized four general guidelines that the Supreme Court uses to avoid constitutional decisions relating to Congress: [p] The Court will not anticipate a question of constitutional law nor decide open questions unless a case decision requires it. If it does, a rule of constitutional law is formulated only as the precise facts in the case require. The Court will choose statutes or general law for the basis of its decision if it can without constitutional grounds. If it does, the Court will choose a constitutional construction of an Act of Congress, even if its constitutionality is seriously in doubt. [119]

Likewise with the Executive Department, Edwin Corwin observed that the Court does sometimes rebuff presidential pretensions, but it more often tries to rationalize them. Against Congress, an Act is merely "disallowed". In the executive case, exercising judicial review produces "some change in the external world" beyond the ordinary judicial sphere. [121] The "political question" doctrine especially applies to questions which present a difficult enforcement issue. Chief Justice Charles Evans Hughes addressed the Court's limitation when political process allowed future policy change, but a judicial ruling would "attribute finality". Political questions lack "satisfactory criteria for a judicial determination". [122]

John Marshall recognized that the president holds "important political powers" which as executive privilege allows great discretion. This doctrine was applied in Court rulings on President Grant's duty to enforce the law during Reconstruction. It extends to the sphere of foreign affairs. Justice Robert Jackson explained, Foreign affairs are inherently political, "wholly confided by our Constitution to the political departments of the government . [and] not subject to judicial intrusion or inquiry." [123]

Critics of the Court object in two principal ways to self-restraint in judicial review, deferring as it does as a matter of doctrine to Acts of Congress and Presidential actions.

  1. Its inaction is said to allow "a flood of legislative appropriations" which permanently create an imbalance between the states and federal government.
  2. Supreme Court deference to Congress and the executive compromises American protection of civil rights, political minority groups and aliens. [124]

Subsequent Courts

Supreme Courts under the leadership of subsequent Chief Justices have also used judicial review to interpret the Constitution among individuals, states and federal branches. Notable contributions were made by the Chase Court, the Taft Court, the Warren Court, and the Rehnquist Court.

Salmon P. Chase was a Lincoln appointee, serving as Chief Justice from 1864 to 1873. His career encompassed service as a U.S. senator and Governor of Ohio. He coined the slogan, "Free soil, free Labor, free men." One of Lincoln's "team of rivals", he was appointed Secretary of Treasury during the Civil War, issuing "greenbacks". To appease radical Republicans, Lincoln appointed him to replace Chief Justice Roger B. Taney of Dred Scott case fame.

In one of his first official acts, Chase admitted John Rock, the first African-American to practice before the Supreme Court. The "Chase Court" is famous for Texas v. White, which asserted a permanent Union of indestructible states. Veazie Bank v. Fenno upheld the Civil War tax on state banknotes. Hepburn v. Griswold found parts of the Legal Tender Acts unconstitutional, though it was reversed under a late Supreme Court majority.


20 Dollars Ratification of the U.S. Constitution

Tracy L. Schmidt (editor) 2019. Standard Catalog of World Coins / 2001-Date (14 th edition). Krause Publications, Stevens Point, Wisconsin, USA.

Commemorative issue

History of America Series - Ratification of the U.S. Constitution

Obverse

Coat of arms of Liberia divides date

Lettering:
REPUBLIC OF LIBERIA
THE LOVE OF LIBERTY BROUGHT US HERE
2001
REPUBLIC OF LIBERIA

Reverse

The U.S. Constitution and an American flag

Lettering:
HISTORY OF AMERICA · RATIFICATION OF THE U.S. CONSTITUTION 1787-1788
We the People
$20

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Watch the video: Creating and Ratifying the US Constitution (August 2022).