CHAPTER
2

The Birth of the Constitution

In This Chapter

• The Constitutional Convention of 1787
• Historical and theoretical influences
• Controversy and compromise
• The Preamble

The convention in Philadelphia contemplated not only a totally new document, but also a totally new form of government. The delegates, mostly well educated and prosperous, were well versed in political thought and theory, and they knew their history.

From the beginning of the convention, the men were confronted with deal-breaker issues. But through sheer determination, they came up with acceptable compromises, although often grudgingly and rarely unanimously.

The Constitutional Convention

It was already warm in Philadelphia in May 1787, and it promised to be a long, hot summer—not the best circumstances for bringing together several dozen strong-minded men, each with his own priorities and problems, in an often-sweltering debating hall. Their task was to try to save their new nation. The former colonies had won the War of Independence, the American Revolution, and they had won their freedom from England and the rule of King George III.

But after winning the war, America was losing the peace. The new United States of America was being held together—barely—by the Articles of Confederation. If the Articles had worked, we probably would not have our present Constitution—or our present form of government. But in 1787, the Articles weren’t working.

Philadelphia, 1787

As the delegates gathered for the Constitutional Convention, Philadelphia, the City of Brotherly Love, was the largest city in America, with a population of about 40,000. (New York was second, at about 30,000, and Boston third, at about 18,000.) The convention was set to begin on May 14 at the Pennsylvania State House, where the Declaration of Independence had been signed. The building, now Independence Hall, the centerpiece of Independence National Historical Park, had been the seat of the revolutionary American government, home at times to the Second Continental Congress and then the Confederation Congress.

James Madison, from Orange County, Virginia, was one of the first to arrive. But the convention did not actually begin until 11 days later, on May 25, when enough delegates had arrived to declare a quorum. As frequently happened, the bad roads, deeply rutted and in places washed out, made for slow travel on horseback or via horse-drawn coaches.

A number of prominent founding fathers did not attend. John Adams was serving as the American minister to England, and Thomas Jefferson was the minister to France, but both were known supporters of a stronger central government. Among the founding fathers who did not attend because they opposed changes to the Articles of Confederation was Patrick “Give me liberty or give men death” Henry, who stayed home in Virginia, where he was a frequent critic of the convention in general and Madison in particular.

Twelve states sent delegations. Rhode Island, the smallest state but one of the most aggressive at trying to tax other states, did not send a delegation out of fear that its tariffs would be outlawed by the other states. Pennsylvania had the largest delegation, with eight men. New York and Connecticut sent only three delegates each, and New Hampshire’s two delegates did not arrive until late July.

The Delegates

Of the 74 delegates who had been designated to attend, only 55 ever appeared at the convention through the summer. Some delegates, such as Madison, attended regularly; others rarely attended. Of the 55, 29 had fought in the Revolutionary War. Most had served in the Continental Congress, the Confederation Congress, or state and local government.

Benjamin Franklin, the oldest delegate at age 81, attended convention sessions infrequently, sometimes being carried by men in a sedan chair from his home. His contributions during floor debates were infrequent, and his remarks were sometimes read by a younger delegate with a heartier voice. But Franklin was a revered figure, and his opinions and observations were still highly regarded. He played a considerable role behind the scenes, in the many conversations among delegates informally in the evenings, often over dinner.

The delegates were acutely aware of the issues that led to the War of Independence, and particularly the dangers of a strong executive in the form of a monarchy. As they gathered in Philadelphia, they were resolved to live by the rule of law, not the rule of a king, although Washington was held in such high regard there was talk of making him king.

More than half the delegates in Philadelphia were lawyers. Others were bankers, farmers, physicians, shippers, land speculators, and manufacturers. Many of the delegates were familiar with the process of creating a constitution because they had been involved in drafting and debating their state constitutions.

The delegates also were well versed in political and legal theory, including “natural” law holding that people are born with natural rights such as life, liberty, and the pursuit of happiness, as expressed in the Declaration of Independence. (The idea was that instead of the government granting rights to the people, the people were born with inalienable rights, and the people granted the government the right to govern them.) With their vast knowledge, the delegates could discuss the advantages and disadvantages of various types of models of government, going back to early Greece and the Roman Empire.

Political Thought and Government Theory

America’s grand experiment in democracy is based on a relatively new and radical idea: a government by and for all citizens. Various forms of participatory and representative government have been tried throughout history; however, until the United States was formed, democracy was a largely failed theory.

We have made it work, more or less, thanks to our Constitution, the document upon which we base our rule of law. It’s important for us to remember, though, that the words of the Constitution—what it says—are not as significant as the fact that we, as a society, have agreed to live by the spirit of the rules laid down in the Constitution.

Society’s Agreement

Ever since our ancestors began to gather in tribes and villages, humankind has been looking for the best way to live together and create civilization. Chieftains and kings handed down laws and enforced them, often according to their own whims. But even when the leader was kind and just, people wanted to know the rules. And they wanted assurances that the rules would be applied fairly and equally for everyone. In other words, they wanted the rule of law—a government of laws rather than men.

A constitution, whether for a powerful nation or for a local garden club, is a set of charter rules, a supreme or paramount law that outlines how the organization will operate. In terms of a nation, the constitution sets forth political principles, establishes power and authority, and defines rights and responsibilities. The constitution outlines the general principles for what a government can and cannot do. Specific laws enacted by the government, also called statutory law, spell out the details. For example, the U.S. Constitution gives the government the authority to collect taxes but leaves it to the government to decide who and what will be taxed and how much.

The U.S. Constitution establishes a federal system of state governments that operate with a certain amount of self-rule under a single national government. There is a constant balancing of interests to preserve the rule of law and prohibit any person or group of people from dominating the government. There are balances among the three branches of government, between the states and the federal government, and among individual states.

Not all constitutions are codified. Israel, New Zealand, and the United Kingdom have constitutional governments, but instead of a single written document, their constitutional laws derive from a number of different documents and unwritten principles that are sometimes called common law.

Written or not, it’s important to remember that a constitution is so much more than its actual words. The former Soviet Union had a beautifully written constitution, full of the same sort of high-minded language the U.S. Constitution uses to guarantee liberty. But the Soviet constitution was little more than lip service; instead of the rule of law, the Soviet Union was ruled by a single political party that imposed what many Soviet citizens thought was a particularly harsh brand of communism.

Back to the Magna Carta

The earliest written laws date to ancient Babylon (now Iraq) and King Hammurabi, who had his Hammurabi Code carved into stone and put on public display in the eighteenth century B.C.E.

In the seventh century B.C.E., Draco became the first law scribe in ancient Greece, although the laws he codified were extraordinarily harsh by today’s standards and often carried the death penalty for even minor crimes (hence the modern word draconian). Another Greek lawgiver, Solon, put forth the idea that laws should be equal for rich and poor. Whether or not people lived in a democracy, he believed they should be able to rely on the rules being applied fairly and equally to everyone. Aristotle advanced the notion of a constitutional form of government based on a set of master laws. In Rome, Cicero promoted the idea that rather than taking away individual freedom, laws promote freedom when everyone agrees to live by the rules.

The Germanic tribes who dominated Europe in the Dark and Middle Ages had various sets of laws, sometimes written and sometimes not, but the precedents for our Constitution were not confined to Europe. Japan had an early constitution based on Buddhist lessons on morality. Mohammed drafted the Constitution of Medina. And the Iroquois nation had a constitution that was said to inspire the early American settlers.

For the American colonists, however, perhaps the most important legal document in history was the Magna Carta, signed reluctantly by King John of England in 1215. The king was waging foreign wars against Muslims, and members of the nobility were upset at the cost in taxes and men. England’s barons objected to the way the king used his authority, and they threatened him with rebellion unless he signed.

It’s worth remembering that the Magna Carta actually did little or nothing for common citizens; it was strictly for the benefit of the feudal lords who supported the king. But for the first time, the king was subject to the law instead of making the law, and the Magna Carta became the foundation for our rule of law. The Magna Carta put some limits on the king’s ability to levy taxes, but its most important provision was the right of habeas corpus, which said that the king could not imprison or execute anyone without due process. Article 39 of the Magna Carta said, “No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgment of his peers, or by the law of the land.”

The Magna Carta was short-lived (so was King John), but the principles became a cornerstone over the following centuries into the so-called Age of Enlightenment. English common law increasingly recognized the rights of individuals, particularly when kings abused their power by granting economic favors to their friends, such as monopolies over certain aspects of trade and industry. Public dissatisfaction with both crown and cronies, particularly in the way the courts came to be controlled by politicians, helped inspire the English Civil War (also called the Glorious Revolution) in 1688.

While the American colonists were carving out their own brand of rugged individualism on the other side of the Atlantic, thinkers such as John Locke helped England embrace the idea of more individual rights and less government authoritarianism. Locke stressed that a government’s role was to protect the property of its citizens. Locke and others also stressed that certain rights are natural to humankind and cannot be given or taken away by kings or governments. Those ideas were embraced on our side of the Atlantic.

The delegates to the Constitutional Convention of 1787 knew it was important to remember that a constitution, whether written or not, is so much more than its actual words. Their goal was a constitution based on what can be described as a free-market premise: society should be a marketplace of ideas, and people should be able to use their knowledge and their energy to make better lives for themselves. The rationale is that no government can know what’s best for all its citizens; instead, people know what’s best for themselves.

At the same time, it is important to recognize that democracy does not necessarily mean individual liberty. Democracy can mean tyranny by the majority if individual rights are not protected. Instead, our form of democracy, as outlined in the Constitution, strives to preserve and protect individual rights: I have the right to do whatever I want as long as it’s not prohibited by law and it doesn’t violate anyone else’s individual rights.

Washington’s Return

George Washington was the pivotal figure in the American Revolution, the biggest hero, the Father of His Country. But Washington initially was reluctant to attend the convention in Philadelphia. When the war ended and he resigned his commission as commander in chief of the Continental Army, he looked forward to a quiet life back home at Mount Vernon in Virginia. He had been one of the richest men in America, but he had neglected his estate to pursue the war. He and his wife, Martha, were intent on reviving Mount Vernon and restoring their fortune. (Martha had not wanted her husband to go to the convention. She also later objected to him becoming the first president of the United States and did not attend his inauguration in New York in 1789.)

But Washington, heeding the pleas of other founding fathers, decided he had to go to Philadelphia. He had seen how the colonies nearly lost the Revolutionary War because of the weak central government’s difficulty in raising and supporting his army. Also, Shays’ Rebellion had alarmed him and made him question whether the states, under the Articles of Confederation, could withstand threats, either from other countries or from within. And as a farmer and businessman, he wanted a fluidly operating continental marketplace. Washington finally agreed to participate. The chances of success, he acknowledged, would be greater if he lent his reputation and gravitas to the proceedings.

When the convention finally opened on May 25, the first action was to elect George Washington as presiding officer. Washington made few substantive contributions over the 4 months of the convention, but he kept proceedings moving in an orderly fashion. And although it might seem ironic today, given the significance of open government and freedom of the press as constitutional issues, the delegates agreed to keep the proceedings secret. It was going to be difficult to reach agreement, the delegates reckoned, and it would be even harder if every proposal were dissected in newspapers and in coffee shops.

Another procedural wrinkle that helped the process was the convention’s agreement to meet frequently as a committee of the whole instead of splitting off into separate committees that would report back with findings or recommendations to be debated. As a committee of the whole, all the delegates could participate in any debate on any issue and then vote immediately.

Contentious Issues

Madison knew he and other proponents of a new constitution were facing an uphill battle. The oldest son of a wealthy Virginia plantation family, Madison was one of the younger delegates, still in his thirties. He had a wide-ranging education, both formal and self-directed, heavy on the classics. After graduating in the early 1770s from the College of New Jersey (now Princeton University), he became involved in local Virginia politics and the independence cause, and Thomas Jefferson soon became a mentor. Madison became a colonel in the Virginia militia, but his frail health kept him out of combat against the British. He served in the Continental Congress both before and after the war, and in the Confederation Congress.

In his first days in Philadelphia, while waiting for a quorum to traverse the rutted roads so the convention could begin, James Madison began drafting a plan for a new constitution. It could have been called the Madison Plan but instead was named the Virginia Plan. Madison consulted primarily with members of the Virginia and Pennsylvania delegations, who also favored a new constitution and a stronger central government.

Madison did not present the Virginia Plan himself, even though he was its chief architect. Only 5-foot-4, not even weighing 100 pounds, Madison was a slight, frail man, and not an imposing or powerful public speaker. Instead, the Virginia Plan was submitted by the more robust Edmund Randolph, the popular governor of Virginia and the leader of the state’s delegation.

The Virginia Plan met immediate opposition, especially among delegates who were against a new constitution. When it became clear that the momentum at the convention was moving inexorably toward a new constitution, some delegates all but stopped attending sessions. Two of the three New York delegates packed up and went home, saying they would not have come if they had known the convention was going to do anything more than amend the Articles of Confederation. New York’s remaining delegate, Alexander Hamilton, an ardent Madison ally and supporter of a strong central government, stayed in Philadelphia and took an active role in the convention.

A number of significant parts of Madison’s Virginia Plan have become common precepts of democratic government the world over, such as the system of checks and balances among three different branches. Historically, England had two branches of government—the legislative branch in the form of a representative Parliament and the executive branch in the form of the monarch and the crown courts. Madison, concerned about limiting the executive branch, called for a separate third branch, the judiciary. The early judicial branch in the United States was relatively weak, however, and did not become a truly meaningful part of the checks and balances until the Supreme Court established itself through bold and popular decisions in the nineteenth century.

The Virginia Plan called for two legislative chambers, with members of each elected by popular vote—a sharp contrast to the unicameral Confederation Congress under the Articles of Confederation. The Virginia Plan called for congressional seats to be allocated to the states according to population, which would mean the larger states would have more votes—again, a sharp contrast to the Articles of Confederation, which gave each state one vote. Under the Articles of Confederation, Rhode Island’s single vote counted the same as Virginia’s single vote.

Also extremely controversial was the provision in the Virginia Plan for the national government to have the authority to veto state laws.

To counter the Virginia Plan, the smaller states came up with the New Jersey Plan. It would have kept the Articles of Confederation while adding some fine-tuning to facilitate smooth interstate commerce, raise revenues more reliably, and outline diplomatic channels for dealing with other countries. There would still be just one congressional house, and each state would still have just one vote. The real power would continue to lie with the sovereign states rather than a national government.

The convention quickly bogged down, falling into what looked like a fatal impasse. Franklin, the elder statesman, made a rare personal appearance on the convention floor, beseeching his fellow delegates to take a few days off to meet informally outside the hall. Instead of spending that time with friends and allies who shared their views, he urged delegates to seek out opponents and listen to other points of view. Franklin, too frail to stand and deliver a speech, had a fellow Pennsylvania delegate read his words to the convention, including, “We are sent here to consult, not to contend, with each other.”

The compromise called for a new constitution with a bicameral legislature, the House and the Senate. The members of the House would be selected by popular vote, and seats would be apportioned to the states by population. Each state would have two seats in the Senate, no matter how large the state. Instead of a popular vote, the states themselves would choose their senators. It was an acceptable and elegant solution at the time, although in later years, the system of allowing state legislatures to select senators led to decades of corruption—candidates could in effect “buy” seats in the Senate—until the Seventeenth Amendment in 1913 required that senators be elected by popular vote, too.

The Connecticut Compromise also scrapped the Virginia Plan’s provisions for the national government to veto state laws.

But a big question remained: how would population be counted for apportioning seats to the House of Representatives? It was widely accepted that only “free” men would vote—not women, and not slaves or Indians. But free women would count in the population totals that decided how many seats each state got in the House of Representatives and, eventually, in the Electoral College that would choose the president.

Would slaves be counted as part of the population? The Southern states, who had large numbers of slaves, wanted them counted in the population totals because that would give them more seats. The Northern states did not want slaves counted because that would give the Southern states more power. Another compromise was reached: all free people would be counted, with the exception of Indians who did not pay taxes, and “all other persons”—that is, slaves—in each of the states would be counted as three-fifths of their states’ total population. In other words, 100 slaves would be counted as 60 people in a state’s population total.

After the convention had worked out the basics of the legislative branch, Article I, the delegates’ discussion turned to the executive branch, Article II. It’s a popular belief that George Washington was asked to be king and demurred, but a monarchy was never really considered at the convention. Even the relatively few monarchists left in America (many of King George III’s most loyal Loyalists had fled back to England, taking their riches with them) did not think King George Washington would be a good idea. According to some accounts, the reasoning was, at least in part, because he and Martha had never had children. When he died without an heir, presumably there would be a political upheaval in choosing his successor. It’s true that Washington didn’t want to be king, but he didn’t want to be president, either.

The new nation wanted to get as far away from a monarchy as possible. A king or queen was not compatible with the democratic principles the founders of the United States had in mind. The delegates in Philadelphia agreed on a president who would serve a 4-year term and could run for reelection. Washington considered not running for a second term in 1792 because of his advanced age—he was 60 years old. But he did serve a second term and then retired, which gave rise to the popular conception that the founding fathers believed it unseemly for any president to serve more than two terms. Some other presidents did pursue a third term—notably Ulysses S. Grant—but none succeeded until Franklin D. Roosevelt was reelected to a third term in 1940, on the brink of World War II, and then reelected to a fourth term in 1944, months before his death in 1945. The Twenty-Second Amendment, ratified in 1951, formally limited presidents to two election victories plus 2 years of a 4-year term if they assumed the office as vice president or some other presidential succession role.

Despite the misgivings about having a king or any sort of strong executive, the Constitutional Convention offered the president more power over the United States than King George had over the colonies. The president would serve as commander in chief of the armed forces, could make treaties with other nations, had the power to veto congressional legislation, and could issue pardons. The president also had the duty to appoint ambassadors, Supreme Court justices, federal judges, and executive branch department heads—his Cabinet. He would be the chief law enforcement officer. The Constitution would be the law of the land, and the president would ensure the law of the land was upheld.

The founding fathers feared the power of a king, but they feared the power of the people, too. The people could be easily swayed by populist movements and led to vote for candidates who were charismatic but charted a destructive path. (In the extreme, think Hitler, although many Americans across the political spectrum might be forgiven for pointing toward recent presidential candidates—and perhaps recent presidents—who were charismatic but destructive.)

So instead of a direct popular vote for president, the convention created an Electoral College that gave the state legislatures the power to vote for presidents. The Electoral College remains in effect, although the process was changed with the election of Andrew Jackson to choose the president by popular vote (still through the Electoral College).

The convention eventually added a vice president to the executive branch, in Article II, to be available if the president could not serve. The vice president’s chief official duty—then and now—was to serve as president pro tempore, the presiding officer, of the Senate.

After the legislative and executive debates, the convention handled the third branch of government—the judicial branch—relatively easily, in a much less contentious manner, in Article III. At that point, the judiciary was seen not so much as a third separate and equal leg of the checks and balances, but more as a brake to keep the legislative and executive branches from dominating each other. The convention, reflecting the delegates’ relative lack of concern for the role and impact of the judiciary, ended up creating just one federal court—the Supreme Court. The convention specified that justices would receive lifetime appointments, and their salaries could not be cut while they were still on the bench. The details of setting up the Supreme Court, and the lower federal courts, were left to Congress.

Judicial review—the power of the federal courts to overturn laws passed by Congress or executive actions on the grounds that they violated the Constitution, the supreme law of the land—apparently was not contemplated by the convention on a practical basis. After the convention, James Madison and other federalists advocated strongly for the principle of judicial review but with little result until the Supreme Court itself, beginning with the 1803 case Marbury v. Madison, began to assert the court’s right to declare federal laws and regulation unconstitutional. It was much later that the federal courts asserted the right to void state and local laws as unconstitutional.

Once the separation of powers was established in the first three articles, the delegates turned to Articles IV, V, and VI to set forth the rules for states to work together. Article IV required that laws be applied equally across state borders. One state cannot nullify another state’s laws, and “The United States shall guarantee to every State in this union a Republican Form of Government.” That turned out to be an important constitutional provision during the Civil War.

The delegates in Philadelphia in 1787 wanted the Constitution to stand the test of time, but they were under no illusion that it could not be improved as the nation grew. Article V set forth the procedure for amending the Constitution, allowing either the states or Congress to propose amendments, and for a new constitutional convention to be called for amendments proposed by the states. The convention agreed that no matter where an amendment started, in Congress or with the states, it had to be ratified by three-fourths of the states to become effective.

The Constitution includes no specific mention of God, even though the majority of today’s state constitutions refer to God, Almighty God, or a Supreme Being. However, Article VI insists, “No religious Test shall ever be required as a Qualification to any Office of public Trust under the United States.”

Article VII, in a straightforward manner, outlined how the Constitution would be ratified, with approval from nine states.

The Preamble

The Preamble, or introduction to the Constitution, is another example, like the opening of the Declaration of Independence, of stirring rhetoric that sums up the high ideals of the founding fathers and their hopes for the future:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

When the convention agreed on the general basics of a constitutional framework, a Committee of Detail was appointed to come back with a rough draft. When the rough draft was approved, the convention gave another committee, the Committee of Style, the task of polishing a final version. One of the committee’s assignments was to write an introduction laying out the intentions of the United States and its Constitution.

In the Committee of Style, a New Jersey delegate, Gouverneur Morris, did much of the actual writing of the final draft. The previous draft of the Preamble began, “We the States …” and went on to list each of the 13 former colonies by name. Morris is credited with rewriting the first few lines to create the stirring, now classic, opening phrase of the Preamble: “We the people of the United States, in order to perform a more perfect union ….” Those opening lines, eloquent as they are, created more opposition among some critics back in state legislatures during debates over ratification. For instance, Patrick Henry in Virginia objected that the new wording de-emphasized states’ rights and showed that the framers’ intent was a strong central government that would dominate the states.

When you think about it, those early American colonists participated in two revolutions—one military and one ideological. In many ways, the military war against England was easier. We’re still fighting our other revolution, the one that for the first time established a government by and for the people, based on “popular sovereignty” rather than on the sovereignty of a king or any other form of government.

By our standards today, however, the framers of the Constitution were not especially enlightened. They were white guys, most of them old and rich, and their Constitution was written for themselves and the other old, rich, white guys who ran the states and the country. They did not envision women voting. Some of them may have envisioned black men being free some day, but many of them were themselves slave owners.

The Preamble sets a tone and lays out the goals of the Constitution, but it is worth noting that the Preamble itself, unlike the rest of the Constitution, is not regarded as part of the supreme law of the land. It is merely an introduction. You cannot sue based on the Preamble in the same way you can on the First Amendment if your rights to free speech are violated, for example, or on the Fourth Amendment if the police search your house illegally.

Nonetheless, the Preamble to the Constitution emphasizes the democratic nature of the new nation. The Articles of Confederation sought a “perpetual union,” while the Preamble has the loftier goal “to form a more perfect union.” The Preamble speaks of justice and liberty and offers aspirations of peace and prosperity. In seeking “to secure the blessings of liberty” for all who come after “our posterity,” the founders obviously were thinking about their legacy. The Preamble sets the tone for a Constitution that was written to offer hope, both in 1787 and today.