Constitutional Government
Copyright © Henry J. Sage 2011

The Northwest Ordinance | The Road to Philadelphia | Ratification | Keys to Understanding

The founding fathers believed that their efforts were guided by Providence, not in the sense of an intervening supernatural god, so much as by the natural good fortune that aids worthy causes.  Evidence for that belief can be seen in a fact that once the Treaty of Paris had been signed, the nations of Europe busied themselves with their own affairs and paid little attention to the fledgling nation.  That was a good thing, for under the Articles of Confederation, the thirteen states, still considering themselves sovereign entities, had scant means of defending themselves, raising funds for common needs or maintaining good order and discipline in and between the thirteen jurisdictions. The brief trial and error period, which lasted six years until the Constitution went into effect in 1789, were enough to get the country situated on a firm constitutional foundation.  Had the process overlapped with the early years of the French Revolution, which soon degenerated into terrorism and despotism, the experiment in democracy, which failed in France, might have seemed far less attractive to the Americans.  In other words, had we delayed the process of creating the Constitution, the our political history might have taken a very different, possibly les fortunate, course.

The Great Land Ordinances

One thing that America did have plenty of was land, though the use of it would bring continuing troubles with Indians until late in the 19th century.  During the American Revolution, the Americans resolved not to treat their territories as colonies.  Following the war, Congress sold millions of acres of land to large companies, but those companies had trouble attracting settlers.  Congress therefore realized that some form of control was necessary in the territories that were not yet states.

At the end of the war, several of the states claimed extensive territories west of their own boundaries, but by 1786 all the western territories had been turned over to the federal government.  The Confederation Congress soon decided that the western territories were not to be treated as colonies with the sorts of abuses that the British had imposed upon the original Americans, and a careful policy was worked out.

In 1784 Jefferson drafted an ordinance providing that when the population of a territory reached that of the smallest state, that territory would be eligible for statehood.  The Land   Ordinance of 1785 provided for a layout of townships of 36 square miles, 6 miles on a side with a north and south orientation, divided into one-square-mile lots of 640 acres, to be sold at $1 per acre.  One section was set aside to be sold for income supporting public schools (the first national education law written anywhere), which reflected Jefferson’s commitment to public education as essential to democracy.  The Ohio and Scioto land companies were formed; Marietta, Ohio, was established as the first town in the new territory.  (Marietta remains proud of that distinction to this day.)

The Northwest Ordinance

In 1787 the territory northwest of the Ohio River, which eventually came to comprise the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin, was designated the Northwest Territory, and the Northwest Ordinance of 1787 carefully outlined the process through which the territories would become states.  Each territory was to have a governor, a secretary, and three judges, all chosen by Congress.  When any territory’s population reached five thousand, the male adults there would have the right to elect an assembly.

Once the population reached sixty thousand, the territory could call a convention to draft a constitution and apply for statehood.  In addition, the Ordinance provided for a Bill of Rights that guaranteed freedom of religion, proportional representation trial by jury, and other rights; and slavery was permanently excluded from the territory.  Needless to say, if the provisions of the Northwest Ordinance had been applied to the remaining territories, many of which were soon to become states, the extension of slavery and thus the entire future of the American nation would have been considerably different.

The essential point about the Northwest Ordinance is that America did not see its territories as part of an empire, but rather as territory that would join the original thirteen states on an absolutely equal footing, with the same privileges, rights, and responsibilities.  The Northwest Ordinance has been considered significant enough that some historians have said that its philosophy of equality of territories and new states is part of our constitutional heritage.  Along with the Declaration of Independence, the Northwest Ordinance is seen as one of the highest achievements of the Confederation era.  The principle behind the Northwest Ordinance was carried into the Constitution in Article IV, Section 4, which states:  “The United States shall guarantee to every State in this Union a Republican Form of Government.”

More on Northwest Ordinance

Shays’s Rebellion. In August of 1786 a violent protest erupted in Massachusetts over economic hardships that had resulted in foreclosures of homes and farms. Leader of the rebellion was Daniel Shays, a farmer who had been a captain during the Revolutionary War and was a veteran of the Battle of Breed’s Hill. Massachusetts farmers were frustrated because they were unable to pay their debts due to depressed crop prices, and mortgages were being foreclosed. Shays marched his insurgents to Springfield, threatening the federal arsenal there. State militia backed by federal forces eventually drove off the Shaysites, but the uprising underscored the weaknesses of the Confederation government and the inadequacy of the American interstate commercial structure.
Americans from George Washington to Abigail Adams were horrified by the prospect of a new rebellion. After receiving an alarming letter from Henry Knox about the possible spread of the insurrection to other states, Washington declared it “liberty gone mad.” In a letter to Henry Lee  of October 31, 1786, Washington wrote:

The picture which you have exhibited, and the accounts which are published of the commotions, and temper of numerous bodies in the Eastern States, are equally to be lamented and deprecated. They exhibit a melancholy proof of what our trans-Atlantic foe has predicted; and of another thing perhaps, which is still more to be regretted, and is yet more unaccountable, that mankind when left to themselves are unfit for their own Government. I am mortified beyond expression when I view the clouds that have spread over the brightest morn that ever dawned upon any Country. In a word, I am lost in amazement when I behold what intrigue, the interested views of desperate characters, ignorance and jealousy of the minor part, are capable of effecting, as a scourge on the major part of our fellow Citizens of the Union;…

... You talk, my good Sir, of employing influence to appease the present tumults in Massachusetts. I know not where that influence is to be found; and if attainable, that it would be a proper remedy for the disorders. Influence is no Government. Let us have one by which our lives, liberties and properties will be secured; or let us know the worst at once. … To be more exposed in the eyes of the world, and more contemptible than we already are, is hardly possible.

James Madison also received alarming reports from the north. The situation reminded many that mob rule was sometimes seen as a natural outgrowth of an excess of democracy. Thomas Jefferson was less bothered by the uprising, believing that a little violence was necessary for the good health of liberty, but it was obvious that the federal government could not respond to the needs of the people. In the end, Shays’s rebellion furthered the cause of those who wanted a radical revision of the Articles of Confederation.

Making a New Government: The Road to Philadelphia

By 1785 it had become apparent that the government of the Articles of Confederation was making it difficult to resolve issues among the states. In order to deal with waterways that formed state boundaries, including the Potomac River and Chesapeake Bay, a conference was called at Mount Vernon, where James Madison, George Mason, and others discussed commercial issues. An outcome of the meeting hosted by Washington was that the Virginia legislature invited all the states to attend a meeting in Annapolis in 1786.

The Annapolis Convention. For various reasons, including difficulty of long-distance transportation, the Annapolis convention was only lightly attended. Twelve representatives from five states, including Alexander Hamilton, James Madison and Edmund Randolph, met even as the Confederation Congress was attempting to reorganize itself. The convention, however, accepted a proposal drafted by Hamilton to request all the states to meet in a convention in Philadelphia in May 1787, “to render the Constitution of the Federal Government adequate to the exigencies of the Union.” Spurred by, among other things, the fear generated by Shays’ rebellion, Congress finally endorsed the plan in February 1787 and called for a convention “for the sole and express purpose of revising the Articles of Confederation.”

THE CONSTITUTION:  “THE REPUBLICAN EXPERIMENT”

“Scene at the Signing of the Constitution of the United States” by Howard Chandler Christy
—Library of Congress    

The Philadelphia Convention. The writing and adoption of the Federal Constitution was a vital second step in making the American Revolution and republican experiment a permanent success. It is clear that if the nation of thirteen states could not operate effectively with a weak central government, a nation of thirty, forty, or fifty states would never have become possible. For Alexander Hamilton, James Madison, and other far-thinking political leaders, attempts to amend the Articles of Confederation would only be, to use a modern analogy, rearranging deck chairs on the Titanic. If the nation were to survive and prosper, the Articles would have to go. The men who gathered in Philadelphia in May, 1787, were not, however, necessarily as convinced as Hamilton and Madison that a fresh start was needed.

Twelve states appointed 55 delegates to the Philadelphia convention. Rhode Island sent none, although a few of its distinguished citizens wrote to the members expressing support for the enterprise. Few of the delegates were in attendance the whole time; when the work was complete 39 delegates signed the final draft. They were a distinguished group—Jefferson called them a collection of "demigods." Many of the delegates knew each other from having served together in the Congress, and many of them had been actively involved in writing their own state constitutions. They were well-versed in political matters and were cognizant of historic examples of governments going all the way back to the Roman Republic. Jefferson himself was in Paris as America's ambassador to France, and John Adams represented United States in London. Other notables who were absent included Sam Adams and Patrick Henry, who "smelt a rat." Even those who attended were uncertain of the possible outcome of the meeting. Indeed, it was only after repeated persuasion by Virginia's governor Edmund Randolph and others that George Washington reluctantly agreed to attend, finally convinced that his absence would be damaging to the cause.

Pennsylvania sent the largest delegation, all eight of whom eventually signed the final document. Virginia's was perhaps the most distinguished group, whose seven delegates included George Wythe and George Mason in addition to Madison, Randolph, and Washington. New York sent three delegates, including, of course, Alexander Hamilton. The other two New York delegates disapproved of what was being done and left before the Constitution was completed. Hamilton was the only signer from New York. As a group the delegates were young and well-educated, many of them being college graduates and attorneys. All were cognizant of the momentous nature of the task that faced them. Although the official start of the convention had been set for May 14, a quorum of seven states was not present until May 25, transportation at the time being difficult. For a thoroughly fascinating account of the Convention, see Catherine Drinker Bowen’s classic Miracle at Philadelphia (Boston: Atlantic, 1966.)

Madison’s Role. For those who have had the pleasure of visiting James Madison’s home, Montpelier, in Orange, Virginia, they have probably approached that property on a highway known as the Constitution Route. Madison, they soon discover, is known as the father of our Constitution, and the title is more than fitting. No one worked harder than James Madison to achieve the new form of government that he felt was vital for the success of the American nation. Madison’s notes on the Convention are still the best source we have of the historic event.

Educated at the College of New Jersey, later Princeton University, James Madison was well-versed in matters legal and political. His preparation for the convention was prodigious, and it included reading a “literary cargo” of books sent to him from Paris by his friend Jefferson. Arriving early in Philadelphia, he also acquainted himself with Philadelphia’s most distinguished delegate, Benjamin Franklin, whose friendship and wisdom he came to value enormously. Knowing that as a slight and frail man, he would not make an imposing figure on the convention floor, Madison put together a formula for government known as the Virginia Plan and then had it introduced by the more charismatic and well-known governor of Virginia, Edmund Randolph.

Washington Presides. The first task of the delegates was to select a president, and the choice was obvious: Once again George Washington would lead the vital enterprise. Although Washington participated very little in the debates, his presence in the chair was essential during the long hot summer. The dignity with which he held himself, and the knowledge among the delegates of the sacrifices he had made to achieve liberty, made his position as president one of the highest importance, especially as the summer heat pressed down on the delegates, whose tempers flared from time to time.

Two primary sources provide detailed information on Constitutional Convention: Max Farrand, ed., The Records of the Federal Convention of 1787., 4 vols. (New Haven: Yale University Press, 1966.) James Madison, Notes of Debates in the Federal Convention of 1787 (New York: Norton, 1987.)

The Convention organized itself in such a way as to maximize the possibility of success. First, they agreed that all of their deliberations would be secret, fearing that if news of their proposed document were to leak out, false impressions might be created that would jeopardize eventual ratification. Second, they arranged themselves into a committee of the whole so they could openly discuss various proposals and then recommend them for adoption by the formal convention. Although that move may sound frivolous, it had a serious purpose: After a day of heated debate, the committee might adopt a resolution for presentation to the convention—the very same members—on the following day. With the intervening time for reflection, the convention would have the opportunity to take a fresh look at what had been proposed. They also allowed themselves to revisit issues previously decided, in case later deliberations on other parts of the plan required changes to what had already been decided.

The Legislative Branch. When a quorum of states present late in May, Virginia Governor Edmund Randolph introduced the Virginia Plan, which went beyond revision of the Articles of Confederation and outlined a completely new national government. The plan called for a bicameral legislature, a separate executive, and a separate judicial department. It became immediately apparent that some delegates were by no means prepared to go that far. At that point the convention dissolved itself into a committee of the whole, and the debating began. The major issue for consideration was the structure of the national legislature. Madison noted that the delegates from Delaware were bound not to accept an agreement that removed the equal vote of each state in the legislature. Clearly, compromises would be needed.

In June the smaller states, led by New Jersey, proposed an alternative plan. In essence, the New Jersey plan sought to retain the Articles of Confederation and amend them without depriving the individual states of their sovereignty. It was a plan designed to continue the government as a federation rather than as a consolidated national government. As such, the New Jersey plan was in sharp contrast to the Virginia plan. A New York representative  argued that New York would never have sent delegates to a convention that intended to discard the Articles. The battle lines were drawn.

The issue was representation in the national Congress: the larger states feared that with equal representation in the House, the small states might gang up on them and, in effect, nibble them to death. The small states, on the other hand, feared that the larger states might run roughshod over their interests if representation were proportional. Both plans were referred to the committee of the whole, and after a few days the New Jersey plan was rejected. Debate on revision of the Virginia plan droned on until Washington began to fear that no resolution would be possible.

On July 2 Roger Sherman of Connecticut observed that the convention was “at full stop.” To break the impasse over representation, a special committee was formed with one delegate from each state assigned to find a compromise. George Mason and Benjamin Franklin were members. They worked out a compromise known as the  Connecticut or Great Compromise: The smaller states would be represented proportionately by population in the lower house, and the states would be represented equally by two Senators each in the upper house. On July 16 the compromise was approved by the convention.

The Executive Branch. The creation of an executive brought about the decision to have an elected office of president. Although not as difficult to resolve as the issue of representation in Congress, the role and powers of the chief executive were still a matter of considerable concern. The idea of creating a monarchy was discussed but never seriously considered, as it was inconsistent with the concept of republicanism, though George Washington would have been an acceptable figure as a monarch. But Washington had no male descendants, and the idea of a hereditary monarchy was out of the question in any case. There was talk of a dual structure or even an executive of three members, but it was feared that if they disagreed, an impasse might occur, blocking government action. After much debate, they decided on a single elected executive, the president. The president’s term was set at four years, and he was eligible for reelection.

In the end, the president was given substantial power: He was the commander in chief of the armed forces; he had the power to make treaties, with the advice and consent of the Senate; he could veto congressional legislation, though it could be overridden by a two-thirds vote in both houses; he had the power to grant pardons; he would appoint ambassadors, ministers, justices of the Supreme Court and other judges and heads of government departments (cabinet officers); and he had the responsibility to ensure that the laws of the United States were faithfully executed. An executive with that much power would not have been acceptable during the revolution, when King George was seen as a tyrant by many.

In some respects the president had more power than King George III had held. Partly for that reason, the president was not to be elected directly by the people, but by an electoral college, the makeup of which was left to the states. For the few first few decades of American history, for all practical purposes the president was elected by the state legislatures. It was not until the time of Andrew Jackson that presidents began to be elected by the people, still indirectly through the Electoral College.

The Judicial Branch. The delegates spent far less time on discussion of the judicial branch. Article III, Section 1 of the Constitution, states:

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

The Constitution thus created only one court, the Supreme Court. The remaining structure of the court system was left to Congress. For historical reasons courts were not particularly popular in that era. English courts were seen as places where the king’s prerogatives were executed rather than a place where the rights of the people were defended. Thus Americans were in no mood to see courts created with large powers. It would not be until the tenure of Chief Justice John Marshall that the Court began to attain its proper place as a third and coequal branch of government.

Article IV. Once the major issues had been decided, a committee of detail was appointed to work out the finer points. The convention recessed while to committee went about its work. The remaining articles addressed several important points. Article IV provided for equal application of laws across state boundaries—states cannot nullify or fail to recognize laws of other states. Persons committing crimes in one state can be extradited if they have fled to another state. Slaves—“Persons held to Service or Labour”—escaping into other states must be returned to their owners.

Article IV also provided for admission of new states and stated that “The United States shall guarantee to every State in this Union a Republican Form of Government,” a provision that would become critical during the post-Civil war era.

Article V: Amendments. With few exceptions, anything in the Constitution is subject to amendment. Article V of the Constitution outlines the process by which this can happen. Whether initiated by both houses of Congress or by the state legislatures, any amendment must still be ratified by the legislatures of three-quarters of the states. It is rather remarkable that in more than two hundred years the Constitution has been amended only twenty-seven times. Ten of those amendments are what we call the Bill of Rights, and two of them cancel each other out (Prohibition and repeal.) The most important amendments were those that ended slavery, created United States citizenship, gave women the right to vote, and changed the method by which senators were elected. Interestingly, the basic structure and functioning of government has not been modified at all since 1789.

Article VI. Article VI provided that all actions, laws, treaties, etc., created by the Confederation government would be carried forward under the Constitution. Importantly, Article VI also states that “no religious Test shall ever be required as a Qualification to any Office of public Trust under the United States.” The principle of the separation of church and state finds its roots here. It is worth noting that there is no reference to god, providence or any other form of divinity in the Constitution.

Slavery and the Constitution. There can be no doubt that the men in Philadelphia knew that the issue of slavery serious, and in many ways inconsistent with the principles expressed by Thomas Jefferson in the Great Declaration. No less a figure than George Mason, himself a slave owner and author of the Virginia Bill of Rights, foresaw the dangers of slavery. On August 22, 1787, during convention debate over the issue of slavery, as recorded by James Madison, Mason said:

This infernal traffic originated in the avarice of British Merchants. . . . Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of causes & effects providence punishes national sins, by national calamities. He lamented that some of our Eastern brethren had from a lust of gain embarked in this nefarious traffic. As to the States being in possession of the Right to import, this was the case with many other rights, now to be properly given up. He held it essential in every point of view that the General Government should have power to prevent the increase of slavery. [emphasis added.]

Although we do not know exactly what Mason meant by national calamity, civil war would certainly fit the definition. Many historians and civil rights advocates have bemoaned the fact that the Constitutional convention did not deal with the issue of slavery. But as we shall see below, the process of getting the Constitution signed and ratified was a huge challenge, and trying to deal with slavery in the bargain would almost certainly have doomed it to failure. Still, it must be said that failure to deal with the issue and recognizing it in the Constitution de facto, though the word “slavery” does not appear in the document, was bound to make it much more difficult to deal with in the future.

The Constitution did recognize slavery in the language of persons bound to “a term of service or Labour.” It made provisions for the return of fugitives from slavery, and it adopted the three-fifths compromise—the counting of three-fifths of the slave population in the states for representation in the House of Representatives—as a means of pacifying the South. Furthermore, any restriction on the importation of slaves was not to be permitted under the Constitution until 1808, a part of the Constitution designated as not subject to amendment.

The best that can be said about the issue of slavery in the Constitution is that the creation of a republican form of government made possible the eventual abolition of slavery, but ridding the nation of that “peculiar institution” would be a long, painful, and bloody process.

Article VII: Ratification. Article VII states: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”
We Americans tend to take our Constitution for granted, assuming in retrospect that “of course it was adopted—why wouldn’t it have been?” The fact is that the Constitution came perilously close to not being ratified at all. Why? For one thing, the Constitution granted more power to the national government than King George had ever wielded over the colonies. There were other reasons.

First, the Constitutional Convention violated its charge from the Confederation Congress by writing a new constitution instead of amending the Articles. Second, many feared the absence of a bill of rights. The convention, with minor exceptions, had not addressed individual rights, feeling that the state constitutions would protect individual rights adequately. But Americans were used to seeing things in writing and wanted those rights assured; thus many citizens objected to the proposed constitution because it lacked of a bill of rights. Still, the signatures of George Washington, Benjamin Franklin, James Madison, and others on the document could not be ignored. It would be up to the states to decide the fate of the proposed form of government.

The Convention Concludes. On September 17, 1787, 39 delegates signed the newly written Constitution out of the 55 who had been elected delegates. Thirteen had departed for one reason or another, and three refused to sign, most notably George Mason of Virginia. Mason’s chief complaint was that the Constitution lacked a bill of rights, but he had additional reservations which he shared with a number of others. Of those who did sign, almost all, including George Washington, had reservations about their work. Yet all of them, including Washington, Franklin and Madison, felt that the completed document was as good as they could have achieved under the circumstances. They realized that ratification would be a challenge, and the departing delegates were well aware that it would not be easy to achieve ratification once they returned to their states.

There was also the matter of what the Confederation Congress would decide to do with the document which had been transmitted to them. The framers were fully aware that they had superseded their charter, which had been to amend the Articles of Confederation. Clearly they had gone beyond that, and Congress was under no obligation to accept their work and transmit it without amendment or comment to the states. In the end, however, after brief discussion, that is exactly what they decided to do. The fate of the Constitution was now in the hands of the Confederation Congress. If they followed Article VII, thirteen special state conventions would be held for purposes of ratification. Once nine of them approved, the United States Constitution would go into effect in the ratifying states.

Ratification: The Constitution Goes to the States. Congress wisely decided to pass the document along to the states without otherwise interfering, although they did debate the matter for a time. The most serious arguments against the Constitution were those expressed by Patrick Henry in the Virginia ratifying convention, Samuel Adams in the Massachusetts convention, and others. The first thing that caught the objectors’ eyes were the first words of the preamble: We the People. As Patrick Henry expressed it, where did those gentlemen in Philadelphia get the idea of ‘we the people’ instead of ‘we the states’? Many people wanted a federation, not a national government, and the differences in those days were large.

The Articles of Confederation had created a union of sovereign states, which might legitimately have been called the United Nations of North America. Although the states still retained many powers under the Constitution, a direct link had been created between the people and the national government, which some saw as a threat.

Neither did Patrick Henry look with favor upon the office of president. “It squints toward monarchy,” he said. The American people had just overthrown one tyrant and they did not want another in his place.
Those who supported the Constitution—James Madison, Alexander Hamilton, George Washington, Benjamin Franklin, John Marshall, and eventually even George Mason (the most famous non-signer in Philadelphia)—were known as Federalists. Those who opposed were known as the anti-federalists. They became the second major opposing political groupings in the United States, the first having been Patriots and Loyalists during the Revolution.

Because all of the New York delegation had left the Philadelphia convention except Alexander Hamilton, considerable fear existed that the state might not ratify, and given its key position between New England and the rest of the states, its vote was considered critical. Alexander Hamilton, James Madison, and John Jay therefore penned a series of articles directed at the people of New York known as the Federalist Papers—eighty-five essays defending the Constitution and explaining the essentials of republican government as eloquently as has ever been done.

Alexander Hamilton, James Madison, and John Jay, The Federalist: A Collection of Essays, Written in Favour of the New Constitution, as Agreed upon by the Federal Convention, September 17, 1787. The Federalist Papers, as they are sometimes called, originally appeared as newspaper articles. Various collections have been published, either as text  alone or with commentary by editors.

In the end it was a serious fight, and the outcome was very, very close. If less than 5 percent of all the votes cast in the state conventions had changed, the Constitution would not have been ratified. The votes in several keys states were extremely close.

• Virginia: 89–79. If 5 votes out of 165 had changed, Virginia, the largest and most important state, would have stood outside the Union.
• New York: 30–27. Two votes reversed and the “Empire State” would have been out.
• Massachusetts: 187–168. Ten votes out of 355 change and Massachusetts, the “Cradle of the Revolution,” would not have been part of the new nation.

Even after the Constitution was adopted, it was uncertain exactly how it would be interpreted and followed. In 1798, in response to the Sedition Act of that year, Kentucky passed a resolution stating in part “that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government . . .” As it had been during the debates over ratification, states’ rights was an issue and would remain so until well after the Civil War.

Despite all the issues surrounding its creation, the U.S. Constitution can still be considered one of the most remarkable documents ever penned by man. It was the first government in history created essentially out of whole cloth, and it served as a model for other nations seeking to find a successful way of governing themselves. Although certain provisions of the Constitution have been interpreted in various and sometimes conflicting ways, its essential nature has remained intact.

See Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788, (New York: Simon & Schuster, 2010.) See also Additional Section on Ratification.

 

Toward Greater Understanding

Keys to Understanding the Constitution: Important Points to Remember

Every American should read the United States Constitution at least once and probably more often. Students are often surprised in what they find there, and are often equally surprised by what they do not find. Following the articles creating the three branches of government, the Constitution does cover other important details, such as the fact that the laws of the various states should be recognized by other states, and that every state is required to have a republican, that is representative, form of government.

The Preamble. Most preambles to documents or public pronouncements are designed merely to set the tone and did not contain any significant content. “Dearly beloved, we are gathered together … ” And so on. The opening words of the Declaration of Independence that contain the phrase "all men are created equal," are a statement of philosophy. The specifics come later.
The preamble to the Constitution, however, not only has significant meaning, it has actually been used by the Supreme Court in deciding a case. The opening phrase, “We the people,” instantly caught the attention of anti-Federalists like Patrick Henry and Samuel Adams. It was an instant declaration that the document being transmitted was “of the people, by the people, and for the people.” Henry and Adams would have preferred an opening that recognize the primacy of the states.

The Articles of Confederation had concluded with the statement, “and the union shall be perpetual.” Clearly that meant that the United States were to be a permanent union. The preamble to the Constitution states, "in Order to form a more perfect Union." In 1869 the Supreme Court cited those words as evidence that secession was unconstitutional. In other cases, the phrase to “promote the general welfare” was used in opposition to actions that would not apply equally to all the states. The preamble, in other words, is an important part of the Constitution.

Individual Rights. The first ten amendments to the Constitution are known as the “Bill of Rights.” They were actually additions that the states felt should have been included in the original document. Several basic rights were, in fact, included in the original document. For example, Article I, Section 9, which deals with the powers of Congress, states:

• The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
• No Bill of Attainder or ex post facto Law shall be passed.

The Privilege of the Writ of Habeas Corpus (literally, “you have the body”) is designed to ensure that a person being detained can demand to be brought before a judge to have his or her situation reviewed. It is designed to prevent unlawful detention or imprisonment. It is the same principle that requires that a person arrested must be arraigned before a judge to determine the person's disposition, such as being held on bail, released, and so on. It means that police cannot arrest someone and hold him or her indefinitely without the person's case being heard before a magistrate. It stems from situations in history prior to the revolutionary era when people could be imprisoned, perhaps by a king or queen, for political purposes, and so on.

A bill of attainder is a law which is passed that declares a person or persons guilty of a crime, even though they have not been given a trial. An ex post facto law is a law that deems an action a criminal offence, even when the act was committed prior to passage. It other words, it makes a person guilty of something retroactively. Such acts and laws had been used for political purposes.

The Amendment Process. The Constitution has been amended 27 times, not very often considering that the document is over 220 years old. In fact, it has been amended fewer times than that. The Bill of Rights simply added protections to the rights of the people and did not in any way change the basic Constitution. Two amendments—prohibition and repeal—cancelled each other out. Several amendments modified voting procedures and other relatively unimportant issues. None of the amendments changed the basic functioning of the government. Six amendments—the 13th through 17th and the 19th—made significant changes. Those amendments ended slavery, redefined citizenship and suffrage rights, allowed the government to collect income taxes, provided for the direct election of Senators by the people and gave women the right to vote.

Additional amendments were proposed but were never passed or ratified. It is important to note that only the Congress and the states are involved in amending the Constitution. The president has no function in the amendment process, nor does the Supreme Court. The greatest hurdle to amending the Constitution is the requirement that any amendment must be ratified by three quarters of the states in order to become valid.

The most interesting amendment might be the 27th. It was proposed during the first Congress in 1789 but was not ratified by the necessary number of states. Over the next two hundred years two more states did ratify, but there was no follow up. Then, in 1982, a student at the University of Texas wrote a paper about it and pushed for completion of the process. The amendment was finally declared ratified 202 years after it was first proposed.

Voting Rights under the Constitution. The original un-amended Constitution did not give any person or group the right to vote. The president was to be elected by the Electoral College, and originally the electors were chosen by the state legislators. It was not until the 1820s that the people started electing presidential electors. Senators were also elected by the state legislatures until the 17th Amendment was ratified in 1913. Members of the House of Representatives were elected by the people, but Article I states that people entitled to vote for Congressmen shall have “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” That means that the states have the right to determine who may vote in Congressional elections. Later amendments and court decisions have changed all that. Article IV, Section 4, however, states that “The United States shall guarantee to every State in this Union a Republican Form of Government.” A republican government is composed of the people's elected representatives, meaning that the nation shall be governed by their elected representatives. At the time the Constitution was written, that was a revolutionary doctrine. Full-fledged democracy was still decades off.

Separation of Powers. At the time the Constitution was written, the nation was skeptical of giving too much power to the central government. The framers of the Constitution, however, led by Washington, Madison, Hamilton, Edmund Randolph, and others felt that a strong national authority was necessary to preserve American democracy. To provide safeguards against the abuse of national power, however, they went out of their way to divide the government into three separate components: the executive, legislative, and judicial branches. The separation of powers, however, is far from absolute. Indeed, a considerable overlap of power is spread among the three branches, especially between the legislative and executive branches.

Only Congress has the power to pass laws, but they may be vetoed by the president. The president's veto, however, may be over ridden by a 2/3 majority of Congress. The president is commander-in-chief of the armed forces, but only Congress can declare war. The president appoints his own department heads, but they must be approved by the Senate. The president has the power to make treaties, but they must be ratified by the Senate. The Supreme Court is the final arbiter on questions of the constitutionality of laws passed by Congress, although the court can only become involved when a case involving constitutional rights comes before it, generally on appeal. Congress has the power to impeach the president and other officers as well as members of the courts, who may be removed from office upon conviction. The Supreme Court may direct that certain actions be carried out by other branches of government, but it has no power to enforce those decisions. The president, however, is charged with seeing to it that the laws are faithfully executed.

Over the course of American history, the balance of power between the president and Congress has swung back and forth. For much of the 19th century, Congress was the dominant force in the national government, with exceptions occurring during the presidencies of Andrew Jackson and Abraham Lincoln. Throughout the 20th century, the office of the president, beginning with the Theodore Roosevelt administration, gradually gained more power. Presidents Franklin Roosevelt, Lyndon B Johnson, and Ronald Reagan were all forceful presidents able to get Congress to accept many of their policies. Television and other public media have tended to enhance the persuasive powers of the president, but Congress has by no means deferred uncritically to the president's authority. Nevertheless, as Theodore Roosevelt said, the office of president is a “bully pulpit.”

Although our Constitution remains essentially intact in terms of the functioning of government, relations among the different branches and between the national government and the states as well as between both those entities and the American people has continued to evolve and will no doubt continue to do so in the future.

Powers and Limitations. The Constitution is explicit in the powers granted to Congress as well as limitations on those powers by Congress and the states. On the other hand, the exact language is sometimes vague, as in the clause “necessary and proper.” Many hours of argument have been devoted to the question of exactly what “necessary” means. In some cases those arguments have gone all the way to the Supreme Court.

The complete list of powers is contained in Article I, Section 8. In addition to the obvious powers to lay and collect taxes, contract and pay debts and provide for the defense of the nation, Congress is empowered, among other things, to control the money supply; control interstate commerce; declare war; create and support the armed forces, including the state militia; to govern the District of Columbia; and to create “all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” (See above.)

Limitations on Congress include the aforementioned suspension of habeas corpus, bills of attainder and ex post facto laws, and any taxes not proportional to the state populations according to the census. Article I, Section 9 also states that all duties shall be applied equally across the states, and interstate duties are prohibited.

States are limited from conducting their own foreign-policy and from creating their own money. They are not allowed to tax each other's commerce nor are they allowed to pass any laws “impairing the obligation of Contracts.” The same prohibitions against ex post facto laws, etc., applied to the states as to the Congress. It should be noted that prior to the Civil War, the Bill of Rights was not deemed to apply to the states. It was only after passage of the 14th amendment that all those personal rights were deemed protected at the state as well as at the national level.

How Laws are Made. Article I, Section I, states: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. The Constitution goes into considerable detail on that subject. The most important function of Congress is the passing of bills that become laws when signed by the president. The process involves both the Senate and the House of Representatives as well as the president, and it is important to note from the beginning that a single bill must be passed by the House and the Senate before it can become a law. There are no exceptions.

The bill becomes law when the president signs it, which he must do within 10 days of receiving it. That is the most common course.  If the president fails to sign a bill within 10 days of when it is presented, the bill becomes a law even without his signature. If Congress adjourns within that 10 days, however, and the president has not signed the bill, then it is considered to have been vetoed. This process is called the “pocket veto”; historically, it has occurred only rarely.

Regardless of what happens during this entire process, the bill, as finally passed by both houses, either becomes a law or it doesn't. If the president vetoes the bill, he sends it back to Congress with his objections. They can then override his veto by a vote of two thirds of both houses, having considered the president's objections. All they can do, however, is either override he veto or not. If they decide to amend the bill to meet the president's objections, then it becomes a new bill and the process starts over.

Bills start either as House resolutions or Senate resolutions, and they generally go through a complex process involving committee hearings, testimony from interested cabinet departments, and a period of passing back and forth. Once the two houses get close to agreement on a bill, it is generally sent to a joint committee from both houses whose job it is to reconcile the differences. The process is frequently lengthy, and it is common for bills to be in the process of finalization from one congressional session to the next. Sometimes bills can never be brought to agreement, and they are said to die in committee; sometimes they fail to pass on the floor of the House or Senate. If you review Article 1, Section 7, you will see that the process appears quite simple. In most cases, it is anything but that.

It is also worth noting that the Supreme Court does not become involved in the legislative process at all. The only way in which the Supreme Court can rule on the constitutionality of a law is if the law is challenged in a court, and that challenge is appealed to the Supreme Court. Then and only then can the court overturned a statute passed by Congress. The process, which began with Chief Justice John Marshall, is called judicial review. (It is considered improper for justices to comment on the constitutionality of a law until it arises as part of a case before the Court.)

Amendments. It is important to remember that in amending the Constitution, the president is not involved in any way. The simplest reason for that is that the process of amending the Constitution, which requires the ratification of three quarters of the states, would almost certainly take longer than any presidential term. Therefore it would make no sense to require the president to sign or approve a constitutional amendment. The Constitution was made by "we the people." It can only be amended by the people.

SUMMARY. Catherine Drinker Bowen was wise in choosing as the title of her classic work “Miracle at Philadelphia.” If not a miracle, the outcome of the convention certainly was improbable. Nobody was completely happy with the results. Benjamin Franklin expressed it best when he revealed his doubts about the work on the last day of the convention. (See appendix.) On the other hand, the document has endured for well over two centuries and has weathered severe storms.

The road to Philadelphia through Mount Vernon and Annapolis was long and arduous. The general discontent in the country, underscored by Daniel Shays’s rebellion in Massachusetts, made it imperative that a firm structure be created. In the end, states’ rights were acknowledged, even as a firm national power came into existence. Compromises were necessary to achieve the result, and they were arrived at with pains. Although Madison was surrounded by men of superior intellect and experience, his role as “Father of the Constitution” is a well-deserved epithet. People may regret that more was not done for women, or that slavery was not more firmly addressed, but the groundwork was laid so that those issues could be addressed, as indeed they were.