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Constitutional ConventionConstitution of United States of America
Nonfiction | Essay / Speech | Adult | Published in 1787A modern alternative to SparkNotes and CliffsNotes, SuperSummary offers high-quality Study Guides with detailed chapter summaries and analysis of major themes, characters, and more.
Background
Authorial Context: The Constitutional Convention
Fifty-five delegates from 12 of the original 13 states (only Rhode Island sent no delegates) met in Philadelphia in the summer of 1787. Their plan was to amend a document that had been finalized 10 years before, called the Articles of Confederation and Perpetual Union. This was an agreement among the states that laid out rules for maintaining friendly relations between them and defining, as the name indicates, a “perpetual union” among them. The delegates included prominent figures like George Washington, Benjamin Franklin, James Madison, and Gouverneur Morris.
The representatives quickly decided to draft an entirely new document framing a new scheme of government for the states. The Articles of Confederation established a confederation of sovereign states, but the Constitution is conceived as “institut[ing] a new Government,” to borrow words from the Declaration of Independence, “forming a more perfect Union” among the “People of the United States.” The Articles of Confederation outlined the powers of the already-existing Continental Congress to accomplish things that the federated states felt needed coordination—such as establishing a postal service, a navy, and so on; the Constitution, by contrast, describes a significantly more elaborate structure for federal government.
One important goal of the delegates was to balance power between the states and the new national government. Delegates from small states, for example, feared that their will might be overshadowed by the larger states. Another goal was to strike a balance between liberty and authority by establishing a democratically constituted government (expressing the will of the people) that avoided what many felt were the inherent dangers of democracy, such as the mob mentality or the appearance of demagogues.
In the end, the Constitutional Convention both expanded and limited democracy. For example, under the Articles of Confederation, the legislatures of the states appointed members of a unicameral Congress, descended from the Continental Congress and often called the Congress of the Confederation: Citizens did not directly elect them. (Interestingly, the Congress of the Confederation held both legislative and executive authority; the power of the executive was distributed rather than vested in one figure.) The Constitution created a bicameral Congress—bicameral meaning “two houses”—to replace the unicameral one of the Congress of the Confederation. The Constitution allows for the popular election of the members of one house, the House of Representatives. Meanwhile, state legislatures are tasked with choosing two Senators each to populate the other house, the Senate. This gave an equal weight in the Senate to every state, thereby placating the concerns of states with smaller populations. More importantly, the power of each house is balanced by the other, while the Congress itself is broadly representative.
The Constitution also includes a procedural impediment to the direct, popular election of the president called the electoral college. In this system, 538 so-called “electors” are responsible for casting votes for the president; the presidential election ballots that everyone is familiar with from the voting booth are actually ballots to vote for the elector committed to one or another presidential candidate.
In short, the delegates of the Constitutional Convention settled on establishing a republic that avoided what they felt were the pitfalls of too much democracy. Democracy, in any case, was thought to be impossible for such a large population. As James Madison wrote in the Federalist # 14:
In a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region.
A republic, then, is a representative democracy, in which the government derives its authority from the people and the people are said to rule—however indirectly.
Tensions brewed at the convention over concerns about individual liberties, leading James Madison to agree to later draft a Bill of Rights. This was a series of 10 amendments to the Constitution guaranteeing specific civil liberties.
Moreover, at the end of the convention, the Constitution still had to be ratified. Delegates returned to their home states to garner support or opposition. Madison, Alexander Hamilton, and John Jay, all proponents of the Constitution and a stronger federal government, anonymously published a newspaper serial now known as the Federalist Papers to drum up support. They asserted that the Constitution not only preserved freedoms but protected Americans by placing constraints on the powers of the three branches of the government, thereby preventing future tyrannical rule. By 1788, nine of the required states voted to ratify the Constitution.
Historical Context: The Articles of Confederation
The Articles of Confederation and Perpetual Union, commonly called just the Articles of Confederation, was an agreement between the original 13 states that preceded the US Constitution. It was drafted by the Second Continental Congress in 1777. The document is commonly called “America’s first constitution” but it was not quite, technically speaking, a constitution as we understand the term. It conceives of itself more as a compact between otherwise sovereign states limiting their sovereignty. It names the resulting confederation “the United States of America.” It does not claim to be the expression of the will of the people of the United States, like the US Constitution does.
The Articles of Confederation established a “firm league of friendship” between the states and described a limited framework for their cooperation, above all focusing on an alliance of mutual defense. Using language like that which would appear in the Constitution, the Articles addressed some similar themes. For example, it constrained the states from independently entering into treaties with foreign nations: “The united states, in congress assembled, shall have the sole and exclusive right and power of determining on peace and war […].” The Articles delegated little authority to the federal government beyond declarations of war and the exercise of foreign diplomacy.
The text also formed a single-bodied Congress to which state legislatures appointed delegates annually. The Congress in the period of the Articles (1781-1789) is commonly called the Congress of the Confederation. It held both legislative and executive powers, but both were limited. It could not impose taxes, for example. The states possessed significant autonomy in this loose confederation. As Article 2 states, “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”
The Articles of Confederation gave rise to a weak central government with a Congress that could not generate revenue to pay off the new nation’s debts from the Revolutionary War. Goods produced in the US could not be exported to British territories. Meanwhile, states continued to import goods, making it difficult for American-made goods to find a market. Such weakness led men like James Madison and Alexander Hamilton to call for a stronger federal government. The Constitutional Convention thus met in Philadelphia in 1787 with the intention of amending the Articles. Instead of an amended Articles of Confederation, however, the delegates produced a new Constitution for the United States of America.
Political Context: Amendments to the US Constitution
The Constitution’s fifth article establishes a procedure for amending the document. The Framers understood that the Constitution is a living, changeable document and thus created a formal way to make alterations or clarifications. Congress may propose amendments with a two-thirds vote in favor, or states may propose amendments through conventions. The former is the primary way that the current 27 amendments have been added to the Constitution. Amendments can also be rescinded via the same process. (Only the 18th Amendment that prohibited liquor has been rescinded.)
In 1789, Congress proposed 12 amendments and the states ratified 10 of them. These first 10 amendments to the Constitution are collectively known as the Bill of Rights. The Bill of Rights grew out of anti-Federalist concerns that the strong federal government of the Constitution could infringe on civil liberties. Indeed, three delegates refused to vote for the Constitution’s ratification, most prominently George Mason of Virginia, finding that the great, amorphous powers given to the federal government and its acceptance of the slave trade were unacceptable. To gain support for the Constitution’s ratification among those with similar concerns, the Federalist James Madison agreed at the Constitutional Convention to draft the Bill of Rights. The introduction to the Congressional resolution that proposed these 10 amendments states, “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added […].” In writing the Bill of Rights, James Madison drew upon the Magna Carta, the English Bill of Rights, and the Virginia Declaration of Rights—the last written primarily by George Mason.
The Bill of Rights enshrines liberties that many Americans value today, like freedom of speech, freedom of the press, freedom of religion, the right to bear arms, and the right to due process. These are rights that the anti-Federalist proponents deemed “unalienable,” or inherent and not to be taken away, in the Declaration of Independence. Their enshrinement in the Bill of Rights calmed fears that the federal government could strip people of their inherent freedoms.
Amendments 13 to 15 are known as the “Reconstruction Amendments” because they gained ratification in the wake of the Civil War, a conflict fought over states’ rights to enslave people. The 13th Amendment ended slavery in 1865, save for its employment as punishment for criminal conviction, and ushered in the era called Reconstruction. During this phase of US history, the nation struggled to confer civil rights on emancipated Black Americans. The 14th Amendment extended citizenship to all people born or naturalized in the United States, thus making formerly enslaved Americans citizens. Because Black men were now citizens, they gained suffrage rights with the 15th Amendment’s ratification in 1870. Black Americans technically gained constitutional protections through these amendments, but white supremacists worked hard to prevent them from exercising these rights through Jim Crow laws and the terrors of lynchings that happened primarily in the southern states.
Subsequent amendments have clarified and altered parts of the Constitution, including sections pertaining to civil liberties and governmental constraints. The 26th Amendment, for example, modified the 14th Amendment by lowering the voting age from 21 to 18. Calls for additional amendments continue, and others are stalled or fallen by the wayside. The Equal Rights Amendment, for example, was introduced in 1923 and passed by Congress in 1972. It failed to be ratified by three-fourths of the states, however, even after the seven-year period for its ratification was extended to 10 years. The amendment sought to enshrine gender equality in the Constitution. The Voting Rights Amendment for the District of Columbia sought to give DC residents the same representation in Congress as is given other US citizens. Congress passed the amendment in 1978, but it, too, failed to garner enough support from states. Other failed amendments over the years sought to enshrine slavery, regulate child labor, allow Americans to hold titles of nobility, and more.
