Constitutional Development
Outline
Republican Assumptions
Power would be derived from the people; "all men are created equal" (with certain qualifications in this period). The " revolutionary " aspect at the heart of the republican ideal was that now all political institutions would be judged at to whether they served the public, rather than the interests of the powerful few.
Practices and considerations derived from state constitutions
Practices - Constitutions must be written down; executive power must be sharply limited, esp. that of governors; closer approximation of direct popular rule - still limited by various property qualifications (as a certain "wisdom" was thought to arise from property ownership), as well as considerations of race and gender. Entail and primogeniture eliminated as a means to prevent rise of a hereditary aristocracy. Many positions in governments still appointive. State legislative seats not distributed according to population. Bicameral legislature used to approximate Parliamentary structures of aristocratic upper house and a plebian lower house; however, the two houses did not operate as embodiment of different classes. State support for Anglican Church abolished.
Considerations - Conventions a useful device in writing a constitutions - the meeting of a special assembly, perhaps only once, would limit malleability of the document. Excessive popular power could create instability in the minds of many Whig leaders (“mob rule"), and while sentiment limited governor's power, nonetheless a need was felt by leaders to invest some power in this executive position (such as not making governor's salary dependent on legislature). Whigs described themselves as "republicans", which meant they felt leaders should be chosen for their superior talents and wisdom, not by means of a purely democratic process. The largest question for Whigs was how to balance pervasive distrust of a central government with a need for an adequately strong central government.
Articles of Confederation (1781 - 1786)
What powers they created - Congress could levy but not collect taxes, gave authority to conduct wars and foreign relations, and gave power to appropriate, borrow and issue money
What weaknesses were contained in them - created a loose union of states; absence of strong executive power inherent in document; no ability to collect taxes; Congress could only ask states for troops but could not raise an army; amendments could only be adopted by unanimous vote; each state, regardless of size, had only one vote; Congress could make laws, however there was no executive to enforce them; there was no national court to settle disputes between states; Congress could not regulate commerce between the states; Congress could not force states to contribute to government needs
Changes made during period in which Confederation was in place
Land - lands north of the Ohio R. under pressure of settlement. Land Ordinance of 1784 provides system to achieve statehood. Northwest Ordinance of 1785 sets up system of surveying and orderly distribution of land, while Northwest Ordinance of 1787 provides a bill of rights settlers and very significantly forbids slavery north of Ohio R. Considered most important legislation while under Articles of Confederation, and was partly motivated by desire to make revenue from land sales as well as the wish to avoid creating colonies in the west.
Impetuses to adopt a new constitution
Newburgh Conspiracy - (1783, during last winter army has to camp out) Washington defuses a coup considered by officers in the Society of Cincinnati. Morris and Hamilton wanted officers to stage this bluff which was meant to provoke states to accept tax measures. Conspiracy follows failure of states to adopt (RI dissents) 5% national import duty.
Shays' Rebellion - While only five states showed up for the 1785 Annapolis Convention (to discuss interstate commerce) indicating that the Articles did enough to be satisfactory, Shays Rebellion in 1786 provoked a much greater reaction. Farmers unable to pay increasingly greater state tax burdens shifted on them could end up imprisoned or have land confiscated. Uprising in western Massachusetts threatens to capture Springfield arsenal.
Jay-Gordoqui Treaty- John Jay seems to ignore west and south in almost establishing a treaty which would have opened up Spanish markets to eastern traders, while closing Mississippi to American traffic. Anger leads to consideration of ideas about dissolving of the union.
Constitutional Convention convened at Independence Hall, Philadelphia, from May 14, 1787 to September 17, 1787.
Hamilton, representing New York, calls for convention to consider measures necessary " to render the constitution of the federal government adequate to the exigencies of the Union". Thirty-nine delegates would sign after four months. Patrick Henry, claiming to " smell a rat", refuses to represent a Virginia in the opening rounds. T. Jefferson sees an assembly of "demi-gods". Profile of delegates: median age, 44.; educated and prosperous. Madison the central figure. Two key issues - should Articles be revised or should a new document be created; how to balance large states and small states.
Competing proposals - Virginia Plan - (Madison) called for lower house whose membership was based on state size. Upper house members would be elected by lower house. A small state might have no members in upper house. Proposals to revise Articles of Confederation would be scrapped. Separate executive, legislative, judicial branches to be established. Strong national government.
New Jersey Plan - (Paterson) wanted to keep existing structure of equal representation of states in
Unicameral legislature
Needs necessary for a national government as recognized by delegates
States must be denied certain powers: to issue money, to abrogate contracts, to make treaties or to wage war, to levy tariffs or export duties.
Resolution of large state-small state controversy, The Great (or Connecticut) Compromise - (Sherman) Equal representation in Senate, and representation by population resolves differences in disputed plans.
Three-fifths Compromise - Counting five slaves as three people resolves dispute between free and slave states.
Commerce Compromise - Disputes between agricultural and manufacturing sectors resolved by agreement permitting Congress to tax goods entering but not leaving the country.
Compromise on Indirect vote on President - by having president elected by Electoral College, dissension between aristocrats and democrats resolved.
Governmental authority divided into three branches would create system of checks -
Executive - president is head of the executive branch, enforces the laws and conducts foreign policy. The president is commander-in-chief of the army.
Legislative - House of Representatives and Senate make laws according to the powers granted in Article I, Section 8. Powers include making laws governing items such as commerce, courts, money, war, the armed forces, immigration, and taxation.
Judicial - Supreme Court and lesser courts determine guilt, constitutionality of laws, and the interpretation of the Constitution.
Bill of Rights - In 1791, guarantee of people's liberties were added to the constitution in ten amendments, which was necessary to get ratification by some of the states. Guaranteed was-
- Freedom of speech, press, religion
- Right to bear arms
- People would not be forced to quarter soldiers
- Protection against illegal search
- Right to know reasons for arrest
- Right to quick trial of jury by peers
- Protection against cruel and unusual punishment and excessive bail
- No rights not listed in Constitution should therefore be denied
- People and states would retain powers not assigned to the federal government
Legacies of the debate over ratification - Rules are changed by Convention. Only nine states needed to ratify Constitution, and would be debated at state conventions and not in state legislatures. Collection of essays known as The Federalist, authored by Hamilton, Madison, and Jay, meant to persuade populace that a strong federal government was needed and urge process of ratification onward. Rhode Island was the last to ratify in 1790. The less persuasive name anti-Federalists were given to a group, which noted the absence of a Bill of Rights. Anti-Federalists did not disagree with ends, but rather the means. Leaders among the anti-Federalists were Patrick Henry and Richard Henry Lee, George Clinton, and Elbridge Gerry.