The Constitution reflects the founders' attempt to balance order with freedom. They generally did not believe that people were fully capable of ruling themselves, but they also wanted to check any tendency toward monarchy. The Constitution is based on five great principles designed to achieve this balance:
Popular Sovereignty- the basic principle that the power to govern belongs to the people and that government must be based on the consent of the governed.
Separation of Powers- the division of government’s powers into three separate branches: executive, legislative, and judicial
Checks and Balances- a political system in which branches of government have some authority over the actions of the others.
Limited Government- the basic principle that government is not all-powerful, and that it does only those things that citizens allow it to do.
Federalism- the division of governmental powers between a central government and the states.
These principles resulted from the agreements and compromises made at the Constitutional Convention in 1787.
BACKGROUND TO THE CONVENTION
During the Revolutionary War, the Continental Congress wrote the Articles of Confederation to provide unity for the separate states that loosely formed the new country. The Articles allowed state governments to retain their powers, and the newly formed central government had severe limitations:
The central government consisted only of a Congress in which each state was represented equally.
No executive or judiciary branches were created.
The central government could not levy taxes. It could only request money from the states.
The central government could not regulate commerce between states. The states taxed each other's goods and negotiated trade agreements with other countries.
No law enforcing powers were granted to Congress.
No process for amending the Articles was provided.
States retained all powers not specifically granted to Congress.
When the war was over, the immediate need for unity was past, and chaos threatened to undo the new nation. States quarreled over borders and tariffs, the country was badly in debt, and foreign countries saw the lack of a strong central government as weakness that could easily be exploited. Many leaders began to push for a government strong enough to settle disputes, to regulate commerce, and levy limited taxes. An important turning point occurred when farmers in western Massachusetts, in debt and unable to pay their taxes, rebelled against foreclosures, forcing judges out of court and freeing debtors from jails. Shay's Rebellion was eventually controlled, but it encouraged leaders to seek a stronger central government.
THE CONSTITUTIONAL CONVENTION
Fifty-five delegates arrived from the thirteen states in May 1787. Most were important men in their states: planters, bankers, businessmen, and lawyers. Many were governors and/or Congressional representatives, and most had read works by Hobbes, Locke, and
French philosophers, such as Voltaire and Montesquieu. Several famous delegates were:
Alexander Hamilton, the leading proponent of a strong, centralized government.
George Washington, the chairman of the Convention, and the most prestigious member, who also was a strong supporter of a centralized government.
James Madison, a young, well-read delegate from Virginia, who is usually credited with writing large parts of the Constitution
Benjamin Franklin, the 81-year-old delegate from Pennsylvania, who had also attended the Continental Congress in 1776
Absent were Thomas Jefferson, serving as ambassador to France, and John Adams, ambassador to England. Other absent leaders were Patrick Henry, who refused to come because he smelt a rat, and Samuel Adams, who was not selected by Massachusetts to attend. The absence of Patrick Henry and Samuel Adams almost certainly tilted the balance of the convention toward order and freed the delegates from criticism as they created a stronger central government.
Agreements and Compromises
The founders' common belief in a balanced government led them to construct a government in which no single interest dominated. They were concerned with the "excesses of democracy" (Elbridge Gerry, delegate from Massachusetts), demonstrated by Shay's Rebellion, and they agreed with Locke that government should protect property.
Benjamin Franklin - a strong proponent of liberty and equality - proposed that all white males have the right to vote, but most delegates believed that only property owners should have the franchise. In their view, ordinary people would either scheme to deprive property owners of their rights or become the "tools of demagogues." In the end the founders did not include specific voting requirements in the Constitution, leaving each state to decide voter qualifications for its citizens.
A major issue at the convention was the balance of power between the large states and the small. The large states favored a strong national government that they believed they could dominate, and the small states wanted stronger state governments that could avert domination by the central government. These different interests are apparent in the first discussions of representation in Congress. Most favored a bicameral, or two-house, legislature, similar to the organization of most state legislatures since colonial times.
The Great Compromise (The Connecticut Compromise)
The delegates from Virginia opened the Convention with their Virginia Plan that called for a strong central government. Although proposed by James Randolph, the plan was almost certainly the work of James Madison, who, along with Alexander Hamilton, reasoned that a suggestion as boldly different from the current government would not be accepted, but might at least inspire major revisions. Their plan succeeded beyond their hopes. The delegates took the plan seriously, and began the debate with the assumption that the central government would be strengthened greatly. The plan called for
a bicameral legislature: the larger house with members elected by popular vote and the smaller, more aristocratic house selected by the larger house from nominees from state legislatures. Representation in both houses was to be based on wealth or numbers, giving the large states a majority in the legislature. The Virginia Plan also called for a national executive and a national judiciary.
Delegates from the small states countered with the New Jersey Plan, presented by William Paterson. Just as Madison and Hamilton had hoped, the counter plan did not argue with the need for a stronger central government, giving Congress the right to tax, regulate, and coerce states. The legislature would be unicameral, and each state would have the same vote. The delegates from small states were determined that the new legislature would not be dominated by the large states, and the debate between large and small states deadlocked the Convention. Finally, a committee was elected to devise a compromise, which they presented on July 5.
The Great Compromise (also called the Connecticut Compromise) called for one house in which each state would have an equal vote (The Senate) and a second house (The House of Representatives) in which representation would be based on population. Unlike the Virginia Plan, the Senate would not be chosen by the House of Representatives, but would be chosen by the state legislatures. The House of Representatives would be directly elected by all voters, whose eligibility to vote would be determined by the states. The Compromise was accepted by a very slim margin, and the Convention was able to successfully agree on other controversial issues.
Another disagreement at the Convention was based on North/South differences, particularly regarding the counting of slaves for purposes of apportioning seats in the House. The South wanted to count slaves in order to increase its number of representatives, and the North resisted. The delegates finally agreed on the Three-fifths Compromise, which allowed southern states to count a slave as three-fifths of a person, allowing a balance of power between North and South.
Another debate concerned the selection of the president. The initial decision was for the president to be selected by Congress, but the delegates were concerned about too much concentration of power in the legislature. On the other hand, they feared direct election by the people, especially since the House of Representatives were to be popularly elected.
The Compromise was to leave the selection of the president to an electoral college ö people selected by each state legislature to formally cast their ballots for the presidency.
All but three of the delegates signed the document on September 17, 1787, with others who opposed it leaving before that. The drafting of the Constitution took about three months, but the document has lasted for more than two hundred years, making it the longest lasting Constitution in world history.
AMENDING THE CONSTITUTION
The Founders designed the amendment process to be difficult enough that Congress could not add so many amendments that the original document would end up with little meaning. The process requires action by BOTH the national government and the states before an amendment may be passed.
The Constitution may be formally amended in four ways:
Amendments may be proposed by a 2/3 vote of each house of Congress and ratified by at least 3/4 of the state legislatures. All but one of the amendments have been added through this process.
Amendments may be proposed by a 2/3 vote of each house of Congress and ratified by specially called conventions in at least 3/4 of the states. This method was used once ö for the 21st Amendment that repealed Prohibition ö because Congress believed that many state legislatures would not vote for it.
Amendments may be proposed by a national constitutional convention requested by at least 2/3 of state legislatures and ratified by at least 3/4 of the state legislatures.
Amendments may be proposed by a national constitutional convention and ratified by specially called conventions in at least 3/4 of the states.
The last two methods have never been used to amend the Constitution.
The Constitution is written broadly enough that change can occur within our political system through interpreting the words to fit changing needs and events. All three branches have contributed to informal amendment of the Constitution.
Legislature- Congress has passed laws that reinterpret and expand Constitutional provisions. For example, the Commerce Clause allows Congress to regulate and promote interstate and international commerce. Over time, Congress has passed many laws that define the Commerce Clause, including regulations on forms of commerce that didn’t exist in 1789, such as railroad lines, air routes, and internet traffic.
Executive Branch- Presidents may negotiate executive agreements with other countries, an authority not mentioned in the Constitution. The Constitution requires that foreign treaties be ratified by the Senate, but executive agreements do not. These agreements are used to circumvent the formal process, especially for routine matters that might simply slow the work of the Senate down.
Judicial Branch- Of all the branches, the judiciary has been the most influential in interpreting the Constitution. Article III defines the power of the judiciary very broadly, but does not specifically mention judicial review- the power of the courts to declare statutes unconstitutional and interpret the Constitution when disputes arise. That power was first established in Madison v. Marbury in 1803, when Chief Justice John Marshall claimed judicial review as a prerogative of the court in his famous majority opinion issued in the case.
BEARD’S CRITICISM OF THE FOUNDERS
The founders' interest in protection of property has led some scholars to question their personal interests as motives in writing the Constitution. Charles Beard argued in An Economic Interpretation of the Constitution, written in 1913, that the founders created a constitution that benefited their economic interests. According to Beard, the major conflicts and compromises resulted from the clash of owners of land as property, and owners of business or commercial interests. Many scholars today disagree with Beard because voting at the Convention did not follow these divisions closely. For example, Elbridge Gerry, a wealthy Massachusetts merchant and politician, refused to sign the Constitution. James Madison and James Wilson, men of modest means, were two of its biggest proponents. However, the founders did tend to base their votes on the economic interests of their states, as reflected in the famous compromises at the convention.