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Chapter 2–The Constitution.html
Chapter 2 – The Constitution
Figure2.1: Written in 1787 and amended twenty-seven times, the U.S. Constitution is a living document that has served as the basis for U.S. government for more than two hundred years. (credit: modification of work by National Archives and Records Administration)
2.1The Pre-Revolutionary Period and the Roots of the American Political Tradition
2.2The Articles of Confederation
2.3The Development of the Constitution
2.4The Ratification of the Constitution
TheU.S. Constitution, seeFigure 2.1, is one of the worlds most enduring symbols of democracy. It is also the oldest, and shortest, written constitutions of the modern era still in existence. Its writing was by no means inevitable, however. Indeed, in many ways the Constitution was not the beginning but rather the culmination of American (and British) political thought about government power as well as a blueprint for the future.
It is tempting to think of the framers of the Constitution as a group of like-minded men aligned in their lofty thinking regarding rights and freedoms. This assumption makes it hard to oppose constitutional principles in modern-day politics because people admire the longevity of the Constitution and like to consider its ideals above petty partisan politics. However, the Constitution was designed largely out of necessity following the failure of the first revolutionary government, and it featured a series of pragmatic compromises among its disparate stakeholders. It is therefore quite appropriate that more than 225 years later the U.S. government still requires compromise to function properly.
How did the Constitution come to be written? What compromises were needed to ensure the ratification that made it into law? This chapter addresses these questions and also describes why the Constitution remains a living, changing document.
2.1The Pre-Revolutionary Period and the Roots of the American Political Tradition
By the end of this section, you will be able to:
Identify the origins of the core values in American political thought, including ideas regarding representational government
Summarize Great Britains actions leading to the American Revolution
American political ideas regarding liberty and self-government did not suddenly emerge full-blown at the moment the colonists declared their independence from Britain. The varied strands of what became the American republic had many roots, reaching far back in time and across the Atlantic Ocean to Europe. Indeed, it was not new ideas but old ones that led the colonists to revolt and form a new nation.
POLITICAL THOUGHT IN THE AMERICAN COLONIES
The beliefs and attitudes that led to the call for independence had long been an important part of colonial life. Of all the political thinkers who influenced American beliefs about government, the most important is surely JohnLocke(Figure 2.2). The most significant contributions of Locke, a seventeenth-century English philosopher, were his ideas regarding the relationship between government andnatural rights, which were believed to be God-given rights to life, liberty, and property.
Figure2.2: John Locke was one of the most influential thinkers of the Enlightenment. His writings form the basis for many modern political ideas.
Locke was not the first Englishman to suggest that people had rights. The British government had recognized its duty to protect the lives, liberties, and property of English citizens long before the settling of its North American colonies. In 1215, King John signedMagna Cartaa promise to his subjects that he and future monarchs would refrain from certain actions that harmed, or had the potential to harm, the people of England. Prominent in Magna Cartas many provisions are protections for life, liberty, and property. For example, one of the documents most famous clauses promises, No freemen shall be taken, imprisoned . . . or in any way destroyed . . . except by the lawful judgment of his peers or by the law of the land. Although it took a long time for modern ideas regarding due process to form, this clause lays the foundation for the Fifth and Sixth Amendments to the U.S. Constitution. While Magna Carta was intended to grant protections only to the English barons who were in revolt against King John in 1215, by the time of the American Revolution, English subjects, both in England and in North America, had come to regard the document as a cornerstone of liberty for men of all stationsa right that had been recognized by King John I in 1215, but the people had actually possessed long before then.
The rights protected by Magna Carta had been granted by the king, and, in theory, a future king or queen could take them away. The natural rights Locke described, however, had been granted by God and thus could never be abolished by human beings, even royal ones, or by the institutions they created.
So committed were the British to the protection of these natural rights that when the royal Stuart dynasty began to intrude upon them in the seventeenth century, Parliament removed King James II, already disliked because he was Roman Catholic, in the Glorious Revolution and invited his Protestant daughter and her husband to rule the nation. Before offering the throne to William and Mary, however, Parliament passed theEnglish Bill of Rightsin 1689. A bill of rights is a list of the liberties and protections possessed by a nations citizens. The English Bill of Rights, heavily influenced by Lockes ideas, enumerated the rights of English citizens and explicitly guaranteed rights to life, liberty, and property. This document would profoundly influence the U.S. Constitution and Bill of Rights.
American colonists also shared Lockes concept of property rights. According to Locke, anyone who invested labor in thecommonsthe land, forests, water, animals, and other parts of nature that were free for the takingmight take as much of these as needed, by cutting trees, for example, or building a fence around a field. The only restriction was that no one could take so much that others were deprived of their right to take from the commons as well. In the colonists eyes, all free white males should have the right to acquire property, and once it had been acquired, government had the duty to protect it. (The rights of women remained greatly limited for many more years.)
Perhaps the most important of Lockes ideas that influenced the British settlers of North America were those regarding the origins and purpose of government. Most Europeans of the time believed the institution of monarchy had been created by God, and kings and queens had been divinely appointed to rule. Locke, however, theorized that human beings, not God, had created government. People sacrificed a small portion of their freedom and consented to be ruled in exchange for the governments protection of their lives, liberty, and property. Locke called this implicit agreement between a people and their government thesocial contract. Should government deprive people of their rights by abusing the power given to it, the contract was broken and the people were no longer bound by its terms. The people could thus withdraw their consent to obey and form another government for their protection.
The belief that government should not deprive people of their liberties and should be restricted in its power over citizens lives was an important factor in the controversial decision by the American colonies to declare independence from England in 1776. For Locke, withdrawing consent to be ruled by an established government and forming a new one meant replacing one monarch with another. For those colonists intent on rebelling, however, it meant establishing a new nation and creating a new government, one that would be greatly limited in the power it could exercise over the people.
The desire to limit the power of government is closely related to the belief that people should govern themselves. This core tenet of American political thought was rooted in a variety of traditions. First, the British government did allow for a degree of self-government. Laws were made by Parliament, and property-owning males were allowed to vote for representatives to Parliament. Thus, Americans were accustomed to the idea ofrepresentative governmentfrom the beginning. For instance, Virginia established its House of Burgesses in 1619. Upon their arrival in North America a year later, the English Separatists who settled the Plymouth Colony, commonly known as the Pilgrims, promptly authored theMayflower Compact, an agreement to govern themselves according to the laws created by the male voters of the colony.1By the eighteenth century, all the colonies had established legislatures to which men were elected to make the laws for their fellow colonists. When American colonists felt that this longstanding tradition of representative self-government was threatened by the actions of Parliament and the King, the American Revolution began.
THE AMERICAN REVOLUTION
The American Revolution began when a small and vocal group of colonists became convinced the king and Parliament were abusing them and depriving them of their rights. By 1776, they had been living under the rule of the British government for more than a century, and England had long treated the thirteen colonies with a degree of benign neglect. Each colony had established its own legislature. Taxes imposed by England were low, and property ownership was more widespread than in England. People readily proclaimed their loyalty to the king. For the most part, American colonists were proud to be British citizens and had no desire to form an independent nation.
All this began to change in 1763 when theSeven Years Warbetween Great Britain and France came to an end, and Great Britain gained control of most of the French territory in North America. The colonists had fought on behalf of Britain, and many colonists expected that after the war they would be allowed to settle on land west of the Appalachian Mountains that had been taken from France. However, their hopes were not realized. Hoping to prevent conflict with Indian tribes in the Ohio Valley, Parliament passed theProclamation of 1763, which forbade the colonists to purchase land or settle west of the Appalachian Mountains.2
To pay its debts from the war and maintain the troops it left behind to protect the colonies, the British government had to take new measures to raise revenue. Among the acts passed by Parliament were laws requiring American colonists to pay British merchants with gold and silver instead of paper currency and a mandate that suspected smugglers be tried in vice-admiralty courts, without jury trials. What angered the colonists most of all, however, was the imposition of direct taxes: taxes imposed on individuals instead of on transactions.
Because the colonists had not consented to direct taxation, their primary objection was that it reduced their status as free men. The right of the people or their representatives to consent to taxation was enshrined in both Magna Carta and the English Bill of Rights. Taxes were imposed by the House of Commons, one of the two houses of the British Parliament. The North American colonists, however, were not allowed to elect representatives to that body. In their eyes, taxation by representatives they had not voted for was a denial of their rights. Members of the House of Commons and people living in England had difficulty understanding this argument. All British subjects had to obey the laws passed by Parliament, including the requirement to pay taxes. Those who were not allowed to vote, such as women and blacks, were considered to have virtual representation in the British legislature; representatives elected by those who could vote made laws on behalf of those who could not. Many colonists, however, maintained that anything except direct representation was a violation of their rights as English subjects.
The first such tax to draw the ire of colonists was theStamp Act, passed in 1765, which required that almost all paper goods, such as diplomas, land deeds, contracts, and newspapers, have revenue stamps placed on them. The outcry was so great that the new tax was quickly withdrawn, but its repeal was soon followed by a series of other tax acts, such as theTownshend Acts(1767), which imposed taxes on many everyday objects such as glass, tea, and paint.
The taxes imposed by the Townshend Acts were as poorly received by the colonists as the Stamp Act had been. The Massachusetts legislature sent a petition to the king asking for relief from the taxes and requested that other colonies join in a boycott of British manufactured goods. British officials threatened to suspend the legislatures of colonies that engaged in a boycott and, in response to a request for help from Bostons customs collector, sent a warship to the city in 1768. A few months later, British troops arrived, and on the evening of March 5, 1770, an altercation erupted outside the customs house. Shots rang out as the soldiers fired into the crowd (Figure 2.3). Several people were hit; three died immediately. Britain had taxed the colonists without their consent. Now, British soldiers had taken colonists lives.
Figure2.3: The Sons of Liberty circulated this sensationalized version of the events of March 5, 1770, in order to promote the rightness of their cause; it depicts British soldiers firing on unarmed civilians in the event that became known as theBoston Massacre. Later portrayals would more prominently feature Crispus Attucks, an African American who was one of the first to die. Eight British soldiers were tried for murder as a result of the confrontation.
Following this event, later known as the Boston Massacre, resistance to British rule grew, especially in the colony of Massachusetts. In December 1773, a group of Boston men boarded a ship in Boston harbor and threw its cargo of tea, owned by the British East India Company, into the water to protest British policies, including the granting of a monopoly on tea to the British East India Company, which many colonial merchants resented.3This act of defiance became known as theBoston Tea Party. Today, many who do not agree with the positions of the Democratic or the Republican Party have organized themselves into an oppositional group dubbed theTea Party(Figure 2.4).
Figure2.4: Members of the modern Tea Party movement claim to represent the same spirit as their colonial forebears in the iconic lithographThe Destruction of Tea at Boston Harbor(a) and protest against what they perceive as governments interference with peoples rights. In April 2010, members of a Tea Party Express rally on the Boston Common signed a signature wall to record their protest (b). (credit b: modification of work by Tim Pierce)
In the early months of 1774, Parliament responded to this latest act of colonial defiance by passing a series of laws called theCoercive Acts, intended to punish Boston for leading resistance to British rule and to restore order in the colonies. These acts virtually abolished town meetings in Massachusetts and otherwise interfered with the colonys ability to govern itself. This assault on Massachusetts and its economy enraged people throughout the colonies, and delegates from all the colonies except Georgia formed theFirst Continental Congressto create a unified opposition to Great Britain. Among other things, members of the institution developed a declaration of rights and grievances.
In May 1775, delegates met again in theSecond Continental Congress. By this time, war with Great Britain had already begun, following skirmishes between colonial militiamen and British troops at Lexington and Concord, Massachusetts. Congress drafted aDeclaration of Causesexplaining the colonies reasons for rebellion. On July 2, 1776, Congress declared American independence from Britain and two days later signed theDeclaration of Independence.
Drafted by ThomasJefferson, theDeclaration of Independenceofficially proclaimed the colonies separation from Britain. In it, Jefferson eloquently laid out the reasons for rebellion. God, he wrote, had given everyone the rights of life, liberty, and the pursuit of happiness. People had created governments to protect these rights and consented to be governed by them so long as government functioned as intended. However, whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government. Britain had deprived the colonists of their rights. The king had establish[ed] . . . an absolute Tyranny over these States. Just as their English forebears had removed King James II from the throne in 1689, the colonists now wished to establish a new rule.
Jefferson then proceeded to list the many ways in which the British monarch had abused his power and failed in his duties to his subjects. The king, Jefferson charged, had taxed the colonists without the consent of their elected representatives, interfered with their trade, denied them the right to trial by jury, and deprived them of their right to self-government. Such intrusions on their rights could not be tolerated. With their signing of the Declaration of Independence (Figure 2.5), the founders of the United States committed themselves to the creation of a new kind of government.
Figure2.5: The presentation of the Declaration of Independence is commemorated in a painting by John Trumbull in 1817. It was commissioned to hang in the Capitol in Washington, DC.
2.2The Articles of Confederation
By the end of this section, you will be able to:
Describe the steps taken during and after the American Revolution to create a government
Identify the main features of the Articles of Confederation
Describe the crises resulting from key features of the Articles of Confederation
Waging a successful war against Great Britain required that the individual colonies, now sovereign states that often distrusted one another, form a unified nation with a central government capable of directing the countrys defense. Gaining recognition and aid from foreign nations would also be easier if the new United States had a national government able to borrow money and negotiate treaties. Accordingly, the Second Continental Congress called upon its delegates to create a new government strong enough to win the countrys independence but not so powerful that it would deprive people of the very liberties for which they were fighting.
PUTTING A NEW GOVERNMENT IN PLACE
The final draft of theArticles of Confederation, which formed the basis of the new nations government, was accepted by Congress in November 1777 and submitted to the states for ratification. It would not become the law of the land until all thirteen states had approved it. Within two years, all except Maryland had done so. Maryland argued that all territory west of the Appalachians, to which some states had laid claim, should instead be held by the national government as public land for the benefit of all the states. When the last of these states, Virginia, relinquished its land claims in early 1781, Maryland approved the Articles.4A few months later, the British surrendered.
Americans wished their new government to be arepublic, a regime in which the people, not a monarch, held power and elected representatives to govern according to the rule of law. Many, however, feared that a nation as large as the United States could not be ruled effectively as a republic. Many also worried that even a government of representatives elected by the people might become too powerful and overbearing. Thus, aconfederationwas createdan entity in which independent, self-governing states form a union for the purpose of acting together in areas such as defense. Fearful of replacing one oppressive national government with another, however, the framers of the Articles of Confederation created an alliance of sovereign states held together by a weak central government.
Following theDeclaration of Independence, each of the thirteen states had drafted and ratified a constitution providing for a republican form of government in which political power rested in the hands of the people, although the right to vote was limited to free (white) men, and the property requirements for voting differed among the states. Each state had a governor and an elected legislature. In the new nation, the states remained free to govern their residents as they wished. The central government had authority to act in only a few areas, such as national defense, in which the states were assumed to have a common interest (and would, indeed, have to supply militias). This arrangement was meant to prevent the national government from becoming too powerful or abusing the rights of individual citizens. In the careful balance between power for the national government and liberty for the states, the Articles of Confederation favored the states.
Thus, powers given to the central government were severely limited. TheConfederation Congress, formerly theContinental Congress, had the authority to exchange ambassadors and make treaties with foreign governments and Indian tribes, declare war, coin currency and borrow money, and settle disputes between states. Each state legislature appointed delegates to the Congress; these men could be recalled at any time. Regardless of its size or the number of delegates it chose to send, each state would have only one vote. Delegates could serve for no more than three consecutive years, lest a class of elite professional politicians develop. The nation would have no independent chief executive or judiciary. Nine votes were required before the central government could act, and the Articles of Confederation could be changed only by unanimous approval of all thirteen states.
WHAT WENT WRONG WITH THE ARTICLES?
The Articles of Confederation satisfied the desire of those in the new nation who wanted a weak central government with limited power. Ironically, however, their very success led to their undoing. It soon became apparent that, while they protected the sovereignty of the states, the Articles had created a central government too weak to function effectively.
One of the biggest problems was that the national government had no power to imposetaxes. To avoid any perception of taxation without representation, the Articles of Confederation allowed only state governments to levy taxes. To pay for its expenses, the national government had to request money from the states, which were required to provide funds in proportion to the value of the land within their borders. The states, however, were often negligent in this duty, and the national government was underfunded. Without money, it could not pay debts owed from the Revolution and had trouble conducting foreign affairs. For example, the inability of the U.S. government to raise sufficient funds to compensate colonists who had remained loyal to Great Britain for their property losses during and after the American Revolution was one of the reasons the British refused to evacuate the land west of the Appalachians. The new nation was also unable to protect American ships from attacks by the Barbary pirates.5Foreign governments were also, understandably, reluctant to loan money to a nation that might never repay it because it lacked the ability to tax its citizens.
The fiscal problems of the central government meant that the currency it issued, called the Continental, was largely worthless and people were reluctant to use it. Furthermore, while the Articles of Confederation had given the national government the power to coin money, they had not prohibited the states from doing so as well. As a result, numerous state banks issued their own banknotes, which had the same problems as the Continental. People who were unfamiliar with the reputation of the banks that had issued the banknotes often refused to accept them as currency. This reluctance, together with the overwhelming debts of the states, crippled the young nations economy.
The countrys economic woes were made worse by the fact that the central government also lacked the power to impose tariffs on foreign imports or regulate interstate commerce. Thus, it was unable to prevent British merchants from flooding the U.S. market with low-priced goods after the Revolution, and American producers suffered from the competition. Compounding the problem, states often imposed tariffs on items produced by other states and otherwise interfered with their neighbors trade.
The national government also lacked the power to raise an army or navy. Fears of a standing army in the employ of a tyrannical government had led the writers of the Articles of Confederation to leave defense largely to the states. Although the central government could declare war and agree to peace, it had to depend upon the states to provide soldiers. If state governors chose not to honor the national governments request, the country would lack an adequate defense. This was quite dangerous at a time when England and Spain still controlled large portions of North America (Table 2.1).
Problems with the Articles of Confederation
Weakness of the Articles of Confederation Why Was This a Problem?
The national government could not impose taxes on citizens. It could only request money from the states. Requests for money were usually not honored. As a result, the national government did not have money to pay for national defense or fulfill its other responsibilities.
The national government could not regulate foreign trade or interstate commerce. The government could not prevent foreign countries from hurting American competitors by shipping inexpensive products to the United States. It could not prevent states from passing laws that interfered with domestic trade.
The national government could not raise an army. It had to request the states to send men. State governments could choose not to honor Congresss request for troops. This would make it hard to defend the nation.
Each state had only one vote in Congress regardless of its size. Populous states were less well represented.
The Articles could not be changed without a unanimous vote to do so. Problems with the Articles could not be easily fixed.
There was no national judicial system. Judiciaries are important enforcers of national government power.
Table 2.1: The Articles of Confederation suffered from many problems that could not be easily repaired. The biggest problem was the lack of power given to the national government.
The weaknesses of the Articles of Confederation, already recognized by many, became apparent to all as a result of an uprising of Massachusetts farmers, led by DanielShays. Known asShays Rebellion, the incident panicked the governor of Massachusetts, who called upon the national government for assistance. However, with no power to raise an army, the government had no troops at its disposal. After several months, Massachusetts crushed the uprising with the help of local militias and privately funded armies, but wealthy people were frightened by this display of unrest on the part of poor men and by similar incidents taking place in other states.6To find a solution and resolve problems related to commerce, members of Congress called for a revision of the Articles of Confederation.
Shays Rebellion: Symbol of Disorder and Impetus to Act
In the summer of 1786, farmers in western Massachusetts were heavily in debt, facing imprisonment and the loss of their lands. They owed taxes that had gone unpaid while they were away fighting the British during the Revolution. The Continental Congress had promised to pay them for their service, but the national government did not have sufficient money. Moreover, the farmers were unable to meet the onerous new tax burden Massachusetts imposed in order to pay its own debts from the Revolution.
Led by Daniel Shays (Figure 2.6), the heavily indebted farmers marched to a local courthouse demanding relief. Faced with the refusal of many Massachusetts militiamen to arrest the rebels, with whom they sympathized, Governor James Bowdoin called upon the national government for aid, but none was available. The uprising was finally brought to an end the following year by a privately funded militia after the protestors unsuccessful attempt to raid the Springfield Armory.
Figure2.6: This contemporary depiction of Continental Army veteran Daniel Shays (left) and Job Shattuck (right), who led an uprising of Massachusetts farmers in 17861787 that prompted calls for a stronger national government, appeared on the cover ofBickerstaffs Genuine Boston Almanack for 1787.
Were Shays and his followers justified in their attacks on the government of Massachusetts? What rights might they have sought to protect?
2.3The Development of the Constitution
By the end of this section, you will be able to:
Identify the conflicts present and the compromises reached in drafting the Constitution
Summarize the core features of the structure of U.S. government under the Constitution
In 1786, Virginia and Maryland invited delegates from the other eleven states to meet in Annapolis, Maryland, for the purpose of revising theArticles of Confederation. However, only five states sent representatives. Because all thirteen states had to agree to any alteration of the Articles, the convention in Annapolis could not accomplish its goal. Two of the delegates, AlexanderHamiltonand JamesMadison, requested that all states send delegates to a convention in Philadelphia the following year to attempt once again to revise the Articles of Confederation. All the states except Rhode Island chose delegates to send to the meeting, a total of seventy men in all, but many did not attend. Among those not in attendance were JohnAdamsand ThomasJefferson, both of whom were overseas representing the country as diplomats. Because the shortcomings of the Articles of Confederation proved impossible to overcome, the convention that met in Philadelphia in 1787 decided to create an entirely new government.
POINTS OF CONTENTION
Fifty-five delegates arrived in Philadelphia in May 1787 for the meeting that became known as theConstitutional Convention. Many wanted to strengthen the role and authority of the national government but feared creating a central government that was too powerful. They wished to preserve state autonomy, although not to a degree that prevented the states from working together collectively or made them entirely independent of the will of the national government. While seeking to protect the rights of individuals from government abuse, they nevertheless wished to create a society in which concerns for law and order did not give way in the face of demands for individual liberty. They wished to give political rights to all free men but also feared mob rule, which many felt would have been the result of Shays Rebellion had it succeeded. Delegates from small states did not want their interests pushed aside by delegations from more populous states like Virginia. And everyone was concerned about slavery. Representatives from southern states worried that delegates from states where it had been or was being abolished might try to outlaw the institution. Those who favored a nation free of the influence of slavery feared that southerners might attempt to make it a permanent part of American society. The only decision that all could agree on was the election of GeorgeWashington, the former commander of the Continental Army and hero of the American Revolution, as the president of the convention.
The Question of Representation: Small States vs. Large States
One of the first differences among the delegates to become clear was between those from large states, such as New York and Virginia, and those who represented small states, like Delaware. When discussing the structure of the government under the new constitution, the delegates from Virginia called for abicameral legislatureconsisting of two houses. The number of a states representatives in each house was to be based on the states population. In each state, representatives in the lower house would be elected by popular vote. These representatives would then select their states representatives in the upper house from among candidates proposed