Constitution of the United States

• 1. Introduction

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  The Constitution of the United States became the supreme law of the land on the 4th of March, 1789, when it superseded the Articles of Confederation. That earlier document had been the nation's first attempt at a governing charter, and by 1786 it had driven the country to the edge of default on its debts. George Washington described the central problem in three words: "no money". The Congress under the Articles could print currency, but it was worthless. It could borrow, but it could not repay. Soldiers went unpaid, some deserted, and others threatened mutiny. Spain closed New Orleans to American commerce. Barbary pirates seized American ships, and the Treasury had nothing to pay ransom. What came next, hammered out in Philadelphia in the summer of 1787, would become the oldest written national constitution still in force anywhere in the world. How did delegates arrive at a document so durable? Who shaped its words? And why did the men who signed it call it a "makeshift series of unfortunate compromises"?

• 2. A Government Failing

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  The Second Continental Congress had governed the United States as a provisional body from the 5th of September 1774, to the 1st of March 1781. When the Articles of Confederation finally took effect, they gave the central government almost no coercive authority. Any amendment required the unanimous approval of all thirteen state legislatures, which made reform essentially impossible. Individual states laid their own trade embargoes, negotiated directly with foreign powers, raised their own armies, and went to war, all in violation of the Articles. New York and South Carolina repeatedly prosecuted Loyalists and redistributed their land. Connecticut "positively refused" to pay its federal assessments for two years running. A rumor circulated that New York legislators had privately approached the Viceroy of Canada. To the south, the British were said to be openly funding Creek Indian raids on Georgia, which had been placed under martial law. When Shays' Rebellion broke out in Massachusetts in August 1786, Congress could not send a cent to support the state. General Benjamin Lincoln had to raise funds from Boston merchants himself to pay volunteer soldiers. The vision of a respectable nation, in the eyes of George Washington, Benjamin Franklin, and Rufus King, was fading. On the 21st of February, 1787, the Confederation Congress called a convention of state delegates in Philadelphia, not to write a new constitution, but for the "sole and express purpose of revising the Articles of Confederation".

• 3. Philadelphia, Summer 1787

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  On the appointed day, the 14th of May 1787, only Virginia and Pennsylvania had delegates present at Independence Hall. The opening meeting was postponed for lack of a quorum. A quorum of seven states finally assembled on May 25, and deliberations began. Of the 74 delegates appointed, 55 attended; Rhode Island refused to participate at all. The convention's mandate was narrow, but almost immediately the delegates moved beyond it and began debating how to replace the Articles entirely. Two competing visions emerged. Virginia's plan, introduced by its delegates and sometimes called the Randolph Plan, proposed a bicameral Congress elected by proportional representation, an elected executive, and an appointed judiciary. It drew on John Locke for the consent of the governed, Montesquieu for divided government, and Edward Coke for civil liberties. The New Jersey Plan countered with a unicameral Congress in which every state, large or small, kept one vote. It leaned on the English Whig tradition, particularly Edmund Burke, and on William Blackstone's emphasis on legislative sovereignty. On the 19th of June 1787, delegates rejected the New Jersey Plan, with seven states voting against and three in favor. That defeat opened the door to a series of hard negotiations centered on two issues above all others: slavery and proportional representation.

• 4. Compromise and Its Costs

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  From July 2 to July 16, a Committee of Eleven, one delegate from each represented state, worked through the deadlock over representation. Their report, known as the Connecticut Compromise or the Great Compromise, proposed proportional representation in the House of Representatives, equal representation in the Senate, and a rule that all money bills must originate in the House. Slavery forced its own set of bargains. Northern states, where the institution was slowly being abolished, faced Southern states whose plantation economies depended on enslaved labor. Delegates agreed to shield the slave trade from federal interference for twenty years. The Three-Fifths Compromise allowed states to count three-fifths of their enslaved population when calculating representation. Escaped slaves had to be returned to their owners even if captured in states where slavery was illegal. On July 24, a Committee of Detail was elected to put all the agreed resolutions into a coherent draft. Its five members were John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut, and James Wilson of Pennsylvania. They delivered a twenty-three article constitution, plus preamble, on August 6. A second committee, the Committee of Style and Arrangement, then distilled those twenty-three articles down to seven. Its members included Alexander Hamilton, William Samuel Johnson, Rufus King, James Madison, and Gouverneur Morris, who is credited as the primary author of the final draft. The original text was handwritten on five pages of parchment by Jacob Shallus. Benjamin Franklin, addressing the convention on September 17, summed up the mood: "There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them." Three delegates refused to sign.

• 5. The Fight for Ratification

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  Within three days of the signing on the 17th of September 1787, the Constitution was submitted to the Confederation Congress, then sitting in New York City. On September 28 that body voted unanimously to forward it to the thirteen states. Article VII required ratification by just nine states, a two-thirds majority, deliberately bypassing the unanimous consent the Articles had required. Two factions quickly formed. Federalists supported the Constitution; Anti-Federalists opposed it, arguing it lacked sufficient protections for individual rights. In New York, a hotbed of Anti-Federalist sentiment, Alexander Hamilton, James Madison, and John Jay published a series of essays now known as The Federalist Papers. Before year's end, three states had voted in favor: Delaware, unanimously 30-0; Pennsylvania, 46-23; and New Jersey, also unanimously. Connecticut and Georgia followed in early 1788 with near-unanimous votes. But Virginia, New York, and Massachusetts raised serious concerns about the absence of a formal bill of rights. Federalists, fearing defeat, made a promise: if the Constitution were adopted, amendments protecting individual liberties would follow. The Anti-Federalist position collapsed. On the 21st of June 1788, New Hampshire became the ninth state to ratify, making the Constitution operative. North Carolina waited until after the Bill of Rights was passed by the new Congress, and Rhode Island held out until faced with a threatened trade embargo. As one of its final acts, the Congress of the Confederation agreed to acquire one hundred square miles of land from Maryland and Virginia for a permanent capital.

• 6. Structure and Philosophy

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  Gouverneur Morris coined the phrase "We the People" for the Preamble, and it carried real philosophical weight. The original draft had followed those words with a list of the thirteen states; Morris replaced the list with "of the United States" and articulated six goals for the new government, none of which had appeared in the original language. The phrase captured something new: the idea that legitimacy derived from the people, not from the states. The first three articles of the Constitution put into practice Montesquieu's doctrine of separated powers, dividing authority among a bicameral legislature, an executive led by the president, and a judiciary with the Supreme Court at its apex. Articles IV through VI addressed federalism, laying out the rights and responsibilities of states, the supremacy of federal law, and the process of amendment. Article VI included a provision that no religious test would ever be required as a qualification for any federal office. The intellectual debts were wide. The Due Process Clause drew on Magna Carta (1215) and English common law. William Blackstone's Commentaries on the Laws of England were considered the most influential legal texts in the new republic. Benjamin Franklin had studied David Hume's works in Edinburgh in 1760, and Montesquieu's The Spirit of Law shaped Madison's Federalist No. 47 and Hamilton's Federalist No. 78. Franklin himself told the convention: "We have gone back to ancient history for models of Government, and examined different forms of those Republics... And we have viewed modern States all round Europe but find none of their Constitutions suitable to our circumstances."

• 7. The Bill of Rights and Beyond

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  The first ten amendments, added in 1791, fulfilled the promise made during ratification. The First Amendment protected freedom of religion, speech, the press, assembly, and petition. The Second protected the right to keep and bear arms; the Supreme Court has ruled this applies to individuals, not merely to collective militias. The Third barred quartering soldiers in private homes without consent, a direct response to British Quartering Acts during the Revolutionary War. The Fourth protected against unreasonable searches and seizures. The Fifth required grand jury indictment for major crimes and prohibited compelled self-incrimination. The Sixth guaranteed a speedy, public trial; in 1966 the Supreme Court ruled, together with the Fifth Amendment, that this requires what became known as the Miranda warning. The Seventh extended jury trial rights to federal civil cases. The Eighth prohibited excessive bail and cruel and unusual punishment. The Ninth declared that the rights listed in the Constitution were not exhaustive of the people's rights. The Tenth reserved to the states or the people any powers not expressly granted to the federal government. The Reconstruction Amendments reshaped the document after the Civil War. The Thirteenth, ratified in 1865, abolished slavery. The Fourteenth, ratified in 1868, granted citizenship to formerly enslaved people and applied most Bill of Rights protections to state and local governments as well. The Fifteenth, in 1870, prohibited denying the vote based on race. The Nineteenth Amendment, ratified in 1920, extended voting rights to women. The Twenty-sixth, ratified in the shortest time of any amendment, lowered the voting age to eighteen, driven in part by student activism during the Vietnam War. Of the twenty-seven amendments adopted so far, the average ratification time for all of them has been 9 years and 48 days.

• 8. Judicial Review and Living Law

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  No part of the Constitution explicitly authorizes courts to strike down legislation, but the framers did contemplate the idea. In Federalist No. 78, Alexander Hamilton wrote that "a limited constitution can be preserved in practice no other way" than through courts empowered to declare void any legislation contrary to it. The preservation of the people's authority over legislatures rests "particularly with judges." The landmark case Marbury v. Madison in 1803 gave that principle legal force, with Chief Justice John Marshall asserting the Supreme Court's authority to review acts of Congress. Marshall had served in the Virginia Ratification Convention in 1788, and his thirty-four years on the Court produced some of the most consequential rulings in the nation's history. The Supreme Court did not strike down another act of Congress after Marbury until the Dred Scott decision in 1857. In the eighty years between the Civil War and World War II, the Court voided congressional statutes in seventy-seven cases, an average of almost one per year. The early Court drew heavily from people who had built the Constitution. John Jay, co-author of The Federalist Papers, served as the first chief justice for six years. John Rutledge and Oliver Ellsworth, both delegates to the Constitutional Convention, held the position in succession. The Sixteenth Amendment, ratified on the 3rd of February, 1913, gave Congress the power to levy an income tax without apportioning it among the states, overturning an 1895 Supreme Court ruling that had blocked such a tax. The Twenty-seventh Amendment, ratified in 1992, prevented members of Congress from granting themselves pay raises during the current session, and it had been pending before the states for over two centuries before finally crossing the ratification threshold.