Uniting the States

A Commentary on the American Constitution: Third Edition

Lucas Kent Ogden

• Publisher: Books on Demand
• Year: 2015
• ISBN:
  9783732209057
• Edition: 3
• Topic: Law
• Subtopic: International Law
• Index: Law

The war on terror, government surveillance, weapons, and racial injustice are just some of the many crucial topics dividing the United States today. As Americans continue to deal with central questions about their own rights and about the extent of the government's power, their constitutional foundations are as relevant today as ever.The Constitution of the United States is the oldest written constitution in force in the world today. An enduring symbol of American national identity and heritage, it remains the basis for facing the ongoing challenge of uniting the states in a large and diverse country.This concise, readable commentary presents the Constitution in a way that is accessible for interested readers with little background knowledge about American law. Each section is explained clearly, while historical information and connections to recent and current controversies help make this ground-breaking document come to life.

1. Introduction to the Constitution

In some ways, the common perception of the United States as a relatively young country can be misleading. In fact, Americans not only have a strong sense of national tradition, but also use an older written Constitution than any other country. Whereas European countries’ legal foundations typically reflect their 20^th century background of being re-built after the Second World War, or after the Cold War, Americans still base their government and basic rights on a document from the 18^th century. It was drafted against the background of the American Revolution with the goal of uniting a group of former colonies that had fought for independence together. The “framers,” a select group of respected men from different states, developed a blueprint for a new government. Although they failed to address the problem of slavery or to solve the conflicts between the states, the framers managed to establish a Constitution that has endured to the present day.

Historical Background

In the spring of 1776, delegates from several British colonies along the Atlantic seaboard of North America came together to resume the Continental Congress, which had been meeting to decide how to handle the conflicts between the colonies and their mother country. The American colonists, seeing themselves as free British citizens, had longed to be able to send representatives from their colonies to the British Parliament in London. When taxes were imposed with this wish left unfulfilled, many colonists felt that the British principle of “no taxation without representation” was being violated. The British authorities, on the other hand, insisted they had done much to protect the colonists and their rights and that their interests were “virtually” represented in Parliament and taken into consideration. Moreover, as the British had lost both lives and money defending the colonies and securing the trade routes over the Atlantic for them, they found the Americans’ behavior in refusing to pay taxes unfair and ungrateful.

Tensions only continued to escalate on both sides, with both American protests and British attempts to suppress them becoming more aggressive. When colonists in Boston, Massachusetts, finally dumped tea into the harbor rather than paying taxes on it in 1773 (the so-called “Boston Tea Party”), Parliament responded by taking away the right of Massachusetts to govern itself. Alarmed at this heavy-handed treatment, widely perceived as an act of tyranny, Americans in other colonies sided with Massachusetts in its resistance to British rule, and in 1775 the Revolutionary War began. Delegates from all the colonies finally agreed that they would all break away from the British Crown, which they believed had betrayed the liberties and equal rights that they should have had under British law. On July 4, 1776, they formally issued a Declaration of Independence explaining why it was necessary to “dissolve the political bands” held to Great Britain. The best known segment (paragraph 2) proclaims:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

This declaration goes on to explain that King George III has not respected these rights; instead of basing his authority on “the consent of the governed,” he has asserted “an absolute Tyranny over these States.” Therefore, the people have a “right” and even a “duty” to free themselves from this oppressive government and to claim their natural, self-evident and God-given rights.

The actual situation was more complicated. It is difficult to harmonize these words about equality and a right to liberty with the fact that their chief author, Thomas Jefferson, like many colonists, owned slaves! Furthermore, many colonists themselves still felt strong ties to Great Britain and were hesitant to embrace a revolution. However, as the British began to assert their authority with increasing aggression, the Continental Congress decided that complete self-government was the only solution. The Declaration of Independence thus proclaimed the thirteen “united colonies” to be “free and independent states.” On the one hand, the various states had joined together with a common purpose, but on the other hand each state maintained its own independence. These two aspects of being united and yet distinct are expressed in the name given to this union – “The United States of America.”

As the Revolutionary War continued, the delegates put forth a common plan in “The Articles of Confederation and perpetual Union.” Once accepted by all the states, this document guided the emerging country through the Revolutionary War and beyond, from 1781 to 1789. The Articles defined the United States as a “Confederacy,” with each state keeping its own “sovereignty, freedom and independence” (Article 2). The purpose of this “firm league of friendship” was to mutually help each other maintain and defend their liberty (Article 3). Moreover, each state was directed to send a small group of delegates to take part in Congress every year (Article 5). While a simple majority of the states were needed for many of the union’s decisions, particularly important ones required nine states’ agreement (Article 9).

Under the Articles of Confederation, the Continental Congress lacked the power to enforce decisions it made, and the states remained more or less autonomous. For example, Congress could request taxes, but receiving them depended on the individual state governments (Article 7). The states were also slow to pay off their debts from the Revolutionary War, and hesitant to let Congress tax them. In addition, the states argued among themselves, e.g., about their conflicting claims to western territories. Another concern was civil unrest. Indebted farmers started an uprising in Massachusetts, causing landowners and creditors to fear a new rebellion. Standing on the brink of economic ruin and divided into independently-minded states, some feared that the union formed after the American Revolution would not last long.

At the time when they declared independence, most colonists identified primarily with their own states and were not ready to think of all these as composing one united country. However, the Confederation’s failures convinced more and more Americans that a stronger central government would be necessary. Finally, the Continental Congress officially acknowledged the weaknesses in the Articles of Confederation and called for a convention to revise them. In the course of the year 1787 all states except Rhode Island responded by sending delegates to meet in Philadelphia, Pennsylvania. Instead of merely revising the Articles, these men ended up writing a new document altogether. This Constitution preserved a Congress in which all the states were represented, but now it would be both stronger and more democratic. Decisions would have to pass through two distinct houses of Congress that would keep each one’s power in check. There would also be an executive branch of government with the ability to make sure that decisions made by Congress were actually enforced, as well as an independent court system to review the people’s complaints. The United States thus developed from a group of separate colonies into a confederation of independent states, and finally into a republic directed by a central government.

The Framers of the Constitution

The Constitutional Convention met from May 25 to September 17, 1787, in the Pennsylvania State House in Philadelphia, the largest city in the United States at that time. Of the 70 delegates appointed, only 55 of them actually came to the deliberations at all, and 29 attended regularly. In the end, 39 delegates signed the new constitution. At the same location, six of them had signed the Declaration of Independence eleven years before, and five had signed the Articles of Confederation nine years before. There were even two men who signed all three documents. The 39 signers of the Constitution who set up the new government’s framework are referred to as the framers. These men represent a subgroup of the founding fathers or simply founders, meaning in general those who led the United States along the way from several colonies to an independent country. Perhaps surprisingly, some of the most important founding fathers did not attend the Convention. Thomas Jefferson, the main author of the Declaration of Independence, and John Adams, whose pamphlet Thoughts on Government was influential, were on diplomatic duty in Europe. Perhaps some aspects of the Constitution might have turned out differently if these men, who each ended up becoming president, had participated in the debates. Both wanted, for example, to put strict term limits on politicians so that the same people would not be re-elected, and to include a bill of rights from the start.

The framers were prominent citizens with political experience. Almost all of them had been involved in the American Revolution and most had served in the Continental Congress. About half were college graduates, and the other half were self-taught. They were financially stable and influential men, but some had rather humble backgrounds. Some small farmers had been elected as delegates as well, but were poorly represented. Not only would it have been difficult for them to leave their farms to spend a few months attending debates, but they also generally disagreed with the Convention’s goals. In fact, many Americans would have rather remained in a loose confederation, and worried that a new government could threaten the liberties that the revolution had been fought for. The framers, however, had become convinced that a strong, centralized government was necessary for the young country to secure its borders, develop its economy and be taken seriously by Europe. They were afraid of the country falling apart into independent states in conflict with each other and incapable of dealing very well with uprisings, Indian raids and international trade. Being educated and experienced, and understanding the complicated nature of politics, diplomacy and economics, the framers considered themselves more qualified than others to determine what kind of government was needed.

Having been written by a rather elite group, the Constitution of course did not represent all Americans’ perspectives equally. Moreover, the framers and their families had important personal interests at stake in strengthening a government that would secure their own societal position, property, and business opportunities, and would be able to hinder uprisings. At the same time, it is also believable that they sensed a strong moral responsibility towards their communities and states. Their efforts indicate a desire for a government that would serve the best interests of society as a whole (at least from their perspective), both for their own generation and for many to come. Though the framers made the government significantly stronger than it had been under the Confederation, they were also careful to keep its power – and their own – limited. Despite their shortcomings, the framers did in fact succeed in setting up a blueprint that would guide their country into the coming three centuries and serve as a basis for it becoming a major world power and a symbol of liberty.

The presence of George Washington of Virginia and Benjamin Franklin of Pennsylvania made the Convention seem very prestigious. Washington, a long-time military officer who led the American forces in the revolution, was seen as a hero throughout the states. In his desire to bring Americans closer together, Washington was ready to accept compromises to strengthen the union. Franklin, at 81 years of age by far the oldest delegate, was perhaps the most famous American internationally. The largely self-educated key figure in trans-Atlantic diplomacy and in the Enlightenment was known as a printer and popular author, as well as for his contributions to science, philosophy and politics. At the Convention, the aged Franklin encouraged respectful discourse among the younger delegates.

While Washington served as the Convention’s official president and Franklin played a moderating role, the two framers who actually spoke most often during the debates in Philadelphia were Pennsylvanians Gouverneur Morris and James Wilson. Morris, a polished gentleman from a wealthy, aristocratic family in New York, is regarded as the Constitution’s chief drafter. Wilson was a Scottish immigrant and an aggressive land speculator with a turbulent life; his expertise in political theory helped him to be influential in the debates. Morris was hesitant to give power to the common people, being concerned that they could be too easily swayed by money and charismatic speakers, while Wilson spoke out for greater democracy and favored popular elections.

The man who gave the third largest number of speeches in the debates in Philadelphia was James Madison of Virginia, known as the “Father of the Constitution.” Of frail health and indecisive about a career, Madison finally got involved in politics. Having spent much of his life on his aristocratic family’s estate, and not having been healthy enough to participate in the Revolutionary War, the 36-year old was less experienced than most delegates. As it turned out, however, he was quite brilliant in assessing the exact weaknesses in the Articles of Confederation and laying out concrete plans to build a stronger union. As the main drafter of the “Virginia plan,” Madison mapped out a new government with three branches, the law-making branch having two chambers. This was the basic structure adopted by the convention and is still used in the United States today.

The rest of the framers also attended the meetings, participated in the debates and contributed to formulating the Constitution. They represented conflicting interests between smaller and larger states, different opinions about how strong and how democratic the government should be, and were deeply divided about slavery. In the end, the Constitution was a group effort reflecting a long series of compromises, and most delegates were not completely happy with the final document. Under the new government, disagreements continued between the founding fathers, including among those who had signed the same Constitution. When one of the framers, Alexander Hamilton, insisted on creating a national bank, the founding fathers could not agree on whether or not the Constitution allowed this. Congress is not explicitly given this power, but Hamilton claimed it was implied. James Madison and his mentor Thomas Jefferson emerged as leading opponents of this theory of implied powers. Some framers sided with them, while others supported Hamilton, whose views ultimately prevailed in the first Congress. This development shows that the common question about what the framers intended is much too simplistic. If we could ask the framers how to interpret the Constitution they themselves drafted, signed, and defended, we would hear conflicting answers!

The Constitution and Slavery

The most problematic issue that the framers could not agree about was slavery. Although owning people obviously conflicts with the ideals of liberty expressed in the Declaration of Independence, the original Constitution did nothing to stop it. The southern states in particular would not have accepted a constitution that prohibited slavery. The delegates were trying hard to bring the states closer together. As the slavery problem was too controversial for the Constitutional Convention to realistically solve, it was generally avoided. When it absolutely had to be addressed, then this was done indirectly and with compromises.

Even when slaves are referred to, the embarrassing word is never specifically mentioned. Article IV says a “Person held to Service or Labour” could not gain freedom by simply fleeing to another state, but would have to be returned (Section 2, Clause 3). A central compromise can be seen in the problematic “three-fifths” rule. When determining the total number of citizens in the respective states, “free persons” are distinguished from “all other Persons,” who are then each counted as three-fifths of a person (Article I, Section 2, Clause 3). The Articles of Confederation had not counted slaves at all and had even specifically mentioned “all white inhabitants” as making up the relevant population (Article 9, Clause 5). By contrast, the Constitution avoided any references to skin color and referred to those held in slavery as “persons.” Nevertheless, by allowing people who were not “free" to at leas...

Table of contents

• Table of Contents
• Preface
• 1. Introduction to the Constitution
• 2. The Bicameral Congress (Article I, Sections 1-7)
• 3. Congressional Powers (Article I, Sections 8-10)
• 4. The President and the Supreme Court (Articles II-III)
• 5. American Federalism (Articles IV-VII)
• 6. Basic Liberties of Citizens (Amendments I-IV)
• 7. Rights Under the Justice System (Amendments V-X)
• 8. Early Reforms and American Reconstruction (Amendments XI-XV)
• 9. The Early 20th Century (Amendments XVI-XXI)
• 10. Further Modifications (Amendments XXII-XXVII)
• Outlook: Constitutional Law
• Further Reading
• Appendix A: The Constitution (text)
• Appendix B: Overview of Amendments
• Appendix C: Government Comparison
• Index of Selected Key Terms
• About the Author
• Copyright