Constitutional governments are organized in such a way that one person or group cannot get enough power to dominate the government. Two common ways to do this are:
Separate the powers of government. Divide the powers of government among different branches, or parts of the government.
Balance the powers among the branches of government. Divide the powers of government in such a way that no one branch controls the other branches. This gives each branch methods to check the use of power by the other branches.
The Framers Feared Abuse of Power
The Framers knew that throughout history many governments had used their power unfairly. This is why they created the system of limits on governmental power. Two of the ideas that influenced the Framers, separation of powers and checks and balances were created by a French writer named Montesquieu [MAHN tus KYOO].
Separation of Powers
A study of constitutional governments shows that they are often divided into three different groups or branches of government. The power of government is not given to any one branch. Instead, some of the power is given to each branch. This is called separation of powers. For example, we divide our government into three branches with the following power:
legislative power: the power to make laws
executive power: the power to carry out and enforce laws
judicial power: the power to manage conflicts about the meaning, application and enforcement of laws
Checks and Balances
The phrase checks and balances means that the powers of the different branches are balanced. No one branch has so much power that it can completely dominate the other two. Although each branch of government has its own special powers, those powers are checked because some of the powers are shared with the other branches.
According to the United States Constitution, Congress is the legislative branch of our government. The power of Congress is divided between two houses, the House of Representatives and the Senate. Each house of Congress can check the power of the other by refusing to pass a law proposed by the other house.
In addition, our Constitution gives the executive and judicial branches ways to check and control the powers of Congress to make laws. For example:
A bill is a proposed law. When Congress passes a bill, the president must sign it before it can become a law. The president has the right to refuse to sign, or veto, a bill. If this happens, the bill cannot become law unless Congress votes for the bill again and passes the bill by a two-thirds majority of both houses.
The United States Supreme Court can check the power of Congress. The Court can declare a law to be in violation of the Constitution and therefore invalid.
There are similar ways to check the president and Supreme Court.
This system of separation of powers and checks and balances help ensure that the power of government is limited. Because constitutional governments are organized in complicated ways, getting things done may take time. Although it may seem strange, this is often considered an advantage. Many people think that these complications make it more likely that when government does finally make a decision, it will be a well- thought-out one.
As you will recall from the “Shays’ Rebellion” handout, Congress called for a meeting to be held in Philadelphia in 1787. The members of Congress invited each state to send delegates to what became known as the Philadelphia Convention. The purpose of the convention was to search for ways to improve the Articles of Confederation. But something very different was about to happen.
Fifty-Five delegates attended the convention. These delegates are known as the Framers of the Constitution. All were men. Most were young. The average age was forty-two. Most had played important roles in the American Revolution. About three-fourths of the delegates had served in Congress. Most were leaders in their states. Some were rich; most were not, but nobody was poor. Some of these delegates were: James Madison, Alexander Hamilton, George Washington and Benjamin Franklin.
Not all segments of the American population were represented at the Philadelphia Convention. There were no women, African-American or Native-American delegates. Poor farmers like those who took part in Shays’ Rebellion were not present either. The Rhode Island state legislature refused to send delegates to the convention. Citizens in Rhode Island were fiercely independent and hostile to the idea of a new convention.
By May 25, 1787, delegates from eleven states arrived at the convention. The Framers all agreed that George Washington should preside over the meetings at the convention.
Rules during the Convention
At the start of the convention, the Framers agreed on three things. They agreed they would
not try to find ways to improve the Articles of Confederation as Congress had asked them to do. The Framers thought the problems were too serious to try to correct. Instead, the Framers decided to write a new constitution.
keep a record of what was said at the convention a secret for thirty years. The reason for secrecy was that the Framers wanted to develop the best constitution possible. Many feared that if their discussions were made public, the delegates would not express their opinions freely. Also, the Framers did not want people from the outside trying to influence what they were doing. Finally, the Framers wanted the new constitution to be accepted. A new constitution would have a better chance of being approved if people did not know about the arguments that went on during the convention.
give each state one vote in the convention proceedings, no matter the size of a state’s population. The reason for this decision was to gain the cooperation of the small states. Delaware, for example, had threatened to withdraw from the convention if states with large populations were given more votes than states with small populations.
Ideas about Government Included in the New Constitution
The Framers agreed that certain basic ideas about government should be included in the new constitution. These included the idea that
the national government should be a constitutional government, that is, a government of limited powers.
the purpose of government should be to protect the natural rights and to promote the common good.
a strong national government was needed to protect the natural rights.
a republican form of government of elected representatives was needed to make sure that government served the common good.
a system of separation of powers and checks and balances was needed to prevent abuse of power.
Because of their agreement on these basic ideas about government, the Framers were able to write a new constitution. In less than four months they created a constitution that has lasted, with some revisions, for more than 200 years.
Conflict between the Large and Small States
One of the most important conflicts at the Philadelphia Convention was about representation. The Framers disagreed about how many representatives each state should be able to send to Congress. The conflict was between delegates from states with small populations and delegates from states with large populations.
Small States. The small states feared that states with larger populations would control the national government. To avoid this problem, the small states wanted each state to have the same number of representatives in Congress. This is known as equal representation.
Large States. The delegates from the states with larger populations thought that equal representation was unfair. A state with more people should have more votes. The large states wanted to base the number of representatives in Congress on the number of people living in a state. This is called proportional representation.
The Virginia Plan
Before the convention started, James Madison had drafted a plan for the national government. He called it the Virginia Plan.
It proposed a strong national government.
Two governments would govern the people. They would be individual state governments and the national government. Both state and national governments would get their power from the people. This is what we now call a federal system of government.
The national government would have the power to make and enforce its own laws. It would have the power to collect its own taxes.
It divided the government into legislative, executive and judicial branches.
The national legislature was to have two houses: the House of Representatives and the Senate.
The number of representatives in each house would be proportional.
There was considerable debate in the convention about the different parts of the Virginia Plan. The part that created the biggest problem was representation. The larger states favored proportional representation in both houses of Congress. The small states opposed the idea. The smaller states said that unless they had an equal voice in Congress, the larger states would dominate them.
By the middle of June, the debate about representation was no longer making progress. The delegates from the small states asked for time to come up with an alternative to the Virginia Plan.
The New Jersey Plan
William Patterson of New Jersey led the group of small states to develop a new plan for representation. Their plan was called the New Jersey Plan. The New Jersey Plan followed the framework of the Articles of Confederation.
It favored a weak national government.
It called for only one house of Congress.
Each state would have equal representation.
Congress would have the power to collect taxes on products and stamps, as well as levy fines and collect money from the states if they refused to pay taxes.
Congress would have the power to regulate trade among the states (interstate commerce) and with other nations.
Congress would appoint several persons to serve in the executive branch. The executive branch would appoint the members of the U. S. Supreme Court.
The convention debated the New Jersey Plan. The Framers saw that neither the Virginia Plan nor the New Jersey Plan solved the problem of representation. The convention remained divided on this issue. Neither side was willing to accept the position of the other. Tension was growing. Some delegates threatened to quit and go home.
Finally, the convention decided to appoint a special committee to try to solve the conflict. One delegate from each state was asked to serve on the committee.
The Great Compromise
The committee appointed to solve the problem of representation came up with the Connecticut Compromise. It is now called the Great Compromise. The Great Compromise has three parts.
Congress would have two houses, the Senate and the House of Representatives.
Membership in the House of Representatives would be based on proportional representation. The House would have the power to develop all bills (or proposed laws) dealing with taxes and government spending.
Membership in the Senate would be based on equal representation. At first, the Senate only had power to accept or reject bills related to taxes and spending passed in the House. This power was later modified to let the Senate make changes to bills involving taxes and spending in the House.
As in most compromises, each side received a little and each gave up a little. The small states got equal representation in the Senate. The large states got proportional representation in the House. Also, the House would have important powers related to taxing and spending.
The compromise meant that the large states would have slightly more influence over issues of taxing and spending. In the Senate, the small states could check the large states by changing or rejecting taxes and spending bills passed in the House. The Great Compromise was hotly debated. It finally passed by one vote.
Ratifying the Constitution
The Framers did not believe they had created a perfect plan for government. The four months they had spent creating the Constitution had been filled with disagreements. A few delegates had walked out of the convention. Some delegates had refused to sign the Constitution. The great majority of Framers, however, thought they had done a good job.
After creating the Constitution, the Framers knew they had to get it approved. James Madison was afraid that the Constitution would be rejected if either the Congress or the state legislatures were asked to ratify it. To ratify means to approve. To avoid rejection, Madison developed a plan. His plan was to get voters to ratify the Constitution at special conventions to be held in each state. The delegates to those conventions would be elected by popular vote of the people for the sole purpose of approving the Constitution.
Madison based his plan on the idea in the Preamble of the Constitution. The first words in the Preamble are “We the People…do ordain and establish this Constitution.” The people who were to be governed by the new national government would consent to its creation and agree to obey its decisions. This was the method for establishing a government set forth in the natural rights philosophy and in the Declaration of Independence. Thus, the Framers used the idea of a social contract to get the Constitution approved. It was to be approved by an agreement among the people to create a national government.
The Framers approved Madison’s plan. Article VII of the Constitution said that the Constitution would be in effect after it had been ratified by the conventions of nine of the thirteen states. The Framers required approval of the voters in nine states because they were afraid they would not get the approval of all thirteen.
The Federalists and the Anti-Federalists
Once the Philadelphia Convention ended, the Federalists went to work. The Federalists were the people who supported ratifying the Constitution. The Federalists asked the states to organize their ratifying conventions as quickly as possible. They knew that their opponents had not had much time to prepare their arguments. By contrast, the supporters of the Constitution had worked on it for four months. They knew the arguments for and against it.
To explain the new Constitution to the people, Alexander Hamilton, James Madison and John Jay wrote a series of articles for a New York newspaper supporting ratification. These collected articles are called The Federalist Papers. The Federalist Papers were read in other states as well. Today, The Federalist Papers remain one of the most important explanations of constitutional government ever written.
The Anti-Federalists were people who opposed ratifying the Constitution. Anti-Federalist leaders included George Mason, Edmund Randolph and Elbridge Gerry. Each had attended the Philadelphia Convention but refused to sign the Constitution. Although John Hancock, Samuel Adams and Richard Henry Lee had all signed the Declaration of Independence, they too were against ratification. These men were opposed to the Constitution because it did not contain a bill of rights, or a listing of individual rights.
Most Americans were very suspicious of government, but the Anti-Federalists were especially mistrustful of government in general and strong national government in particular. They feared it had created a government the people could not control. The Anti-Federalists feared that flaws they saw in the Constitution would be a threat to their natural rights. During the ratification, the Anti-Federalists put up a strong fight.
The Debate over Ratification
The debates in the states lasted ten months. It was an intense and sometimes bitter political struggle.
Both the Federalists and Anti-Federalists made many arguments for and against the Constitution. However, the most intense arguments were about three basic issues:
Whether the Constitution would maintain republican government.
Whether the national government would have too much power.
Whether a bill of rights was needed in the Constitution.
Why the Federalists Agreed to a Bill of Rights
A compromise was reached on the issue of a bill of rights. The Federalists made this compromise to get enough support for the Constitution so that it would be ratified. They agreed that when the first Congress was held, it would draft a bill of rights.
The argument to add a bill of rights was a victory for the Anti-Federalists. It was an important addition to the Constitution and has been of great importance in the protection of the basic rights of the American people.