A New Constitution

Calls for a Stronger Constitution

Delegates from Virginia and Maryland met at Mount Vernon to settle issues not addressed in the Articles of Confederation and create a model for interstate cooperation.

Learning Objectives

Examine the significance of the Mount Vernon Conference in shaping the American political structure

Key Takeaways

Key Points

  • On March 25–28, 1785, delegates from Virginia and Maryland met at George Washington ‘s home at what became known as the Mount Vernon Conference.
  • The conference established commerce, fishing, and navigation rights between Maryland and Virginia.
  • The conference was significant as a model of interstate cooperation outside of the framework of the relatively weak Articles of Confederation. Its success encouraged further discussion of the limitations of the Articles, and constitutional issues facing the states.
  • The success of the Mount Vernon Conference eventually led to the 1786 Annapolis Convention and the 1787 Philadelphia Convention, which saw the drafting of the US Constitution.

Key Terms

  • Mount Vernon Conference: A meeting of delegates from Virginia and Maryland at George Washington’s home in Virginia on March 25–28, 1785.

The Mount Vernon Conference

On March 25–28, 1785, delegates from Virginia and Maryland met at George Washington’s estate in Mount Vernon, Virginia. This meeting, which came to be known as the Mount Vernon Conference, preceded the Annapolis Convention of 1786 and was a precursor of the 1787 Philadelphia Convention that saw the drafting of the US Constitution. Its primary aim was to settle issues not addressed under the Articles of Confederation, including interstate cooperation.

The conference was attended by Samuel Chase, Daniel of St. Thomas Jenifer, and Thomas Stone of Maryland; and Alexander Henderson and George Mason of Virginia. James Madison and Edmund Randolph were also appointed as Virginia delegates but Virginia Governor Patrick Henry failed to inform them in time, so they were unable to attend.

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George Washington’s estate in Mount Vernon: Mount Vernon, aquatint by Francis Jukes, 1800

Issues Discussed

The delegates were charged with dealing with issues of commerce, fishing, and navigation in the waters of the Potomac River, Pocomoke River, and Chesapeake Bay. These issues were not addressed directly by the Articles of Confederation, which regulated the 13 largely independent states at the time, nor by the authorization of the Potomac Company a year earlier, which was to regulate the Potomac above the Great Falls.

The conference was largely a success and essentially created a model for interstate cooperation. A report was prepared for the two state legislatures in March 1785, containing 13 proposals known as the Mount Vernon Compact. Ratified by both Maryland and Virginia, it declared the Potomac, which was under Maryland’s sole jurisdiction, to be a common waterway for use by Virginia as well. It also provided for reciprocal fishing rights, division of costs of constructing navigation aids, and cooperation on defense and cases of piracy. Lastly, it called for commissioners to deal with any future problems that might arise. The Mount Vernon delegates encouraged Pennsylvania and Delaware to join on to the agreement.

Implications

The conference was significant as a model of interstate cooperation outside of the framework of the relatively weak Articles of Confederation. Its success encouraged James Madison to advocate for further discussion of the limitations of the Articles and the constitutional issues facing the states, including trade and interstate issues and the limited power of Congress. While serving as George Washington’s top aide, Alexander Hamilton also realized that a strong central government was necessary for avoiding foreign intervention and alleviating the frustrations caused by an ineffectual Congress.

On January 21, 1786, following the Mount Vernon Conference, Virginia invited all states to attend a meeting on commercial issues. This would later become known as the groundbreaking Annapolis Convention. In 1787, the Philadelphia Convention further expanded cooperation to include all states in an effort to reform or replace the Articles of Confederation with a new constitution.

A New Constitution

One of the key debates during the drafting of the Constitution regarded state representation in the legislature.

Learning Objectives

Explain the purpose of the Connecticut Compromise and how compromise shaped the creation of the Constitution

Key Takeaways

Key Points

  • Delegates met in 1787 at the Constitutional Convention to revise the Articles of Confederation in a meeting that eventually led to drafting the United States Constitution. The Constitution was the subject of many debates, the most contentious of which concerned state representation in the legislature.
  • The Virginia Plan proposed a legislative branch consisting of two chambers ( bicameral legislature ). Each state would be represented in proportion to its population.
  • The New Jersey Plan, however, proposed a unicameral legislature in which each state, regardless of its size, would have one vote.
  • The Connecticut Compromise established a bicameral legislature, with the House of Representatives apportioned by population as desired in the Virginia Plan, and the Senate granted equal votes per state as desired by the New Jersey Plan.
  • Under the Three-Fifths Compromise, each slave was counted as three-fifths of a person, allowing the slave states to include a portion of their enslaved population when allocating representation.

Key Terms

  • Three-Fifths Compromise: An agreement between Southern and Northern states that allowed a portion of the slave population to be counted for representation purposes regarding both distribution of taxes and apportionment of the members of the House of Representatives.
  • Virginia Plan: A proposal for a bicameral legislative branch in which each state would be represented in proportion to its population.
  • New Jersey Plan: A proposal for a unicameral legislature in which each state, regardless of size, would have one vote.

Constitutional Convention

The Constitutional Convention, which took place in Philadelphia from May 14 to September 17, 1787, was one of the most significant events in the formation of the United States. Twelve of the 13 states, excepting Rhode Island, sent delegates to address the issue of governing the United States. Following its independence from Great Britain, the nation had been operating under the Articles of Confederation, which defined the federal government. Although the convention was called for revising the Articles of Confederation, many of the convention’s proponents (including James Madison and Alexander Hamilton) intended to create a completely new government.

On May 25, the delegations convened in the Pennsylvania State House, and George Washington was unanimously elected as president of the convention. During the following months, several debates shaped what would eventually become the United States Constitution.

Determining Representation: Virginia and New Jersey Plans

Of first importance in the convention was to adopt an efficient system of federal representation; however, delegates disagreed about how to best achieve this. Delegates presented several proposals outlining various political structures. Drawing on British common law and the writings of Enlightenment political philosophers, most of these plans provided for some form of separation between a legislative, executive, and judicial power.

The delegates agreed that the executive office should consist of a single individual elected for a fixed term, in which foreign affairs, control over the armed forces, and appointment of federal officers (including Supreme Court judges) would be consigned. Delegates also accepted the need for either a unicameral (one-house) or a bicameral (two-house) legislature. However, they debated about how many legislators were to be voted into office and what qualifications were needed to hold a seat in a particular house.

Larger state delegates favored a system with proportional representation in both houses; the greater the population of voters in a given state, the more federal representatives would be allotted to that state in Congress. Delegates from these states supported the Virginia Plan, crafted by James Madison, which included a system of proportional representation in Congress as well as an extension of congressional powers. This plan also proposed a bicameral legislature. Members of one of the two legislative chambers would be elected by the people, and members of that chamber would then elect those of the second chamber from nominations submitted by state legislatures. The executive would be chosen by the legislative branch, which would have the power to negate state laws if they were deemed incompatible with the articles of union. The concept of checks and balances was embodied in a provision that legislative acts could be vetoed by a council composed of the executive and selected members of the judicial branch.

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James Madison: James Madison authored the Virginia Plan.

Delegates from small states, however, demanded a system of equal representation, whereby the number of representatives from each state would be fixed, regardless of population size. This system of equal representation was detailed in William Paterson’s New Jersey Plan. This plan proposed a unicameral legislature in which each state, regardless of size, would have one vote. The plan also proposed that Congress would elect a federal executive branch, consisting of multiple people, who could not be re-elected and could be recalled by Congress when requested by the majority of state executives.

Connecticut Compromise

Debate over the Virginia vs. New Jersey Plans was contentious and almost threatened to shut the convention down. However, the Connecticut Compromise proposed by Roger Sherman outlined a system of bicameral legislation that included both proportional and equal representation. Also known as the “Great Compromise,” it allowed for both plans to work together and defined the legislative structure and representation of each state under the Constitution. The Compromise indicated that each state would be given equal representation (as per the New Jersey Plan) in one house of Congress and proportional representation (as per the Virginia Plan) in the other. In the Senate, each state would have two seats. In the House of Representatives, the number of seats would depend on the state’s population.

To further gain the support of the larger states, Benjamin Franklin made two important modifications to this compromise, which was sufficient to win approval for the overall Constitution. He added the requirement that revenue bills would originate in the House, although this language was later modified further so that revenue bills could be modified in the Senate. Franklin also specified that each state (rather than each state delegation) was to receive one vote and that each state would have multiple senators. Because senators would each be voting individually, rather than as a bloc by state, as delegates always had, they would act as free agents on behalf of their state, rather than as mere agents of the state legislatures.

While northern delegations wanted only free citizens to count toward representation, southern delegations wanted to include slaves as a way of increasing their states’ representation in government. The Three-Fifths Compromise, which assessed population by adding the number of free persons to three-fifths of the number of “all other persons” was agreed to without serious dispute. Under this compromise, each slave was counted as three-fifths of a person, allowing the slave states to include a portion of their enslaved population when allocating representation. The free states found the compromise negligible when compared with the ultimate goal of writing a new governing document, and slave states were satisfied by this provision and agreed to support the plan.

Resolving Further Questions

Once the convention had finished amending the first draft of the Constitution, a new set of unresolved questions was sent to several different committees for resolution. The committees shortened the President’s term from 7 years to 4 years, freed him to seek reelection, and moved impeachment trials from the courts to the Senate. They also created the position of Vice President, whose only role was to succeed the President, if necessary, and preside over the Senate.

Once the final modifications had been made, the Committee of Style and Arrangement produced the final version of the Constitution. Not all of the delegates were pleased with the results; 13 delegates left before the signing ceremony and three of those remaining refused to sign. George Mason of Virginia said he would not support the Constitution unless it included a Bill of Rights. While the Bill of Rights was not included in the Constitution submitted to the states for ratification, many states ratified the Constitution with the understanding that a Bill of Rights would soon follow. Thirty-nine of the 55 delegates ended up signing, although it is likely that none were completely satisfied.

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US Postage Stamp: U.S. Postage, Issue of 1937, depicting Delegates at the signing of the U.S. Constitution, engraving after a painting by Junius Brutus Stearns.

The Branches of Government

The United States Constitution set out three separate branches of government: the legislature, executive branch, and judiciary.

Learning Objectives

Describe the primary function of each government branch under the Constitution

Key Takeaways

Key Points

  • The US Constitution established three separate branches of government; each of given defined powers to check and balance out the powers of the other branches.
  • The legislative, executive, and judicial branches of the US government are strongly separated to prevent abuse of power.
  • The legislative branch, also known as Congress, has a bicameral (two-house) structure consisting of the Senate and the House of Representatives. It has the sole power to make, amend, and repeal laws.
  • The executive branch consists of the President, who is commander in chief of the US Army, Navy, and militia, and has the power to make treaties, make appointments to office, receive ambassadors and public ministers, and ensure laws are executed.
  • The judicial branch, or court system, checks the power of both the executive and legislative branches through a process known as judicial review, during which it can rule that certain laws or executive acts are unconstitutional.

Key Terms

  • executive: The branch of government responsible for enforcing laws and judicial decisions, and for day-to-day administration of the state.
  • checks and balances: A series of limits on the power of each branch of the federal government, written into the Constitution.
  • judiciary: The system of courts that interprets and applies the law in the name of the state.
  • legislature: A governmental body with the power to make, amend, and repeal laws.

Division and Separation of Powers in the Constitution

The political doctrine of the separation of powers found in the Constitution originated in the writings of French intellectual Montesquieu in The Spirit of the Laws, wherein he urged for a constitutional government comprising three separate branches of government. Each branch would have defined powers to check the powers of the other branches. This idea was called separation of powers, and also came to be known as a system of checks and balances . This philosophy heavily influenced the writing of the US Constitution, according to which the legislative, executive, and judicial branches of the US government are kept distinct from one another to prevent abuse of power.

Three Branches of Government

Legislative Branch

Article I of the Constitution describes the legislative branch of the federal government, also known as Congress. The United States has a bicameral (two-house) legislature composed of the Senate and the House of Representatives. Article I, Section 8 enumerates legislative powers, which include: “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Essentially, Congress has the sole power to make, amend, and repeal US laws. Article 1 further establishes the manner of election and the qualifications of each body’s members.

Executive Branch

Article II, Section 1 creates the executive branch which vests its power in the President, who, along with the Vice President, serves a 4-year term. The Constitution stipulates that the President must be a natural born citizen of the United States, at least 35 years old, and a US resident for at least 14 years. The Vice President succeeds to the presidency if the President is removed, unable to discharge the powers and duties of office, dies while in office, or resigns.

By law, the President becomes the commander in chief of the US Army, Navy, and militias of several states when called into service. The President has power “…with the Advice and Consent of the Senate” to make treaties and appointments to office, receive ambassadors and public ministers, and “…take care that the laws be faithfully executed.” In using these words, the Constitution does not require the President to personally enforce the law; rather, officers subordinate to the President may perform such duties. The Constitution empowers the President to ensure the faithful execution of the laws Congress makes.

The President exercises a check over Congress through his or her power to veto bills; however, Congress may override any veto by a two-thirds majority in each house. Congress may itself remove the President from office via impeachment and may restrict the President’s actions.

Judicial Branch

Article III describes the court system (judicial branch), which includes the Supreme Court. This article describes the kinds of cases the court takes and protects the right to trial by jury in all criminal cases.

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Supreme Court Building: The Supreme Court – part of the judicial branch of the US government

Courts check both the executive and legislative branch through judicial review. This concept is not written into the Constitution, but was envisioned by many of the Constitution’s framers. The Supreme Court later established a precedent for judicial review in the case of Marbury v. Madison. US courts have the power to rule legislative enactments or executive acts invalid on constitutional grounds. Any state or federal court has the power to refuse to enforce any statute or executive order it deems as not aligned with the Constitution.

Congress, however, which has the power to set the jurisdiction of the courts, may limit judicial power to review the constitutionality of laws. The only constitutional limit on Congress’ power to set the jurisdiction of the judiciary relates to the Supreme Court.

The Limits of Democracy

As the new political value system of republicanism was forming, many framers of the United States Constitution worried about democracy’s limitations.

Learning Objectives

Describe the potential downsides to a democratic system

Key Takeaways

Key Points

  • The framers of the Constitution drew from a vast array of political and philosophical models, and combined them to create the political value system known as republicanism. Many framers believed pure democracy would in fact be quite dangerous, as it would allow a majority to infringe upon the rights of a minority.
  • In 1787, individual states were making separate agreements with European and Native American nations apart from the Continental Congress, leading delegates to worry about the effects of “too much democracy” and a decentralizing of power.
  • Other important influences on the development of the Constitution were the Magna Carta, the idea of consent of the governed, and the system of checks and balances.

Key Terms

  • Magna Carta: A charter, granted by King John to the barons at Runnymede, Britain, in 1215, that is a basis of English constitutional tradition.
  • republicanism: An ideal of government that prioritizes political participation, commitment to the common good, and individual virtue.

Republicanism and the New Constitution

The framers of the Constitution were influenced by a vast array of political and philosophical models, and combined them to create the political value system known as republicanism. Based on both ancient Greek and Renaissance European thought, republicanism has been a central part of American political culture and strongly influenced the Founding Fathers.

Historians argue that much constitutional thought, from James Madison to Abraham Lincoln and beyond, has focused on the perceived problem of majority tyranny. Madison in particular worried that a small localized majority might threaten citizens ‘ rights, and Thomas Jefferson warned that “an elective despotism is not the government we fought for.”

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James Madison: James Madison, co-founder of the Democratic-Republican Party and author of “Federalist No. 10.”

Critiques of Democracy

The Federalist Papers form a collection of 85 articles and essays by Alexander Hamilton, James Madison, and John Jay, promoting ratification of the United States Constitution. Pervasive within them is the idea that pure democracy is in fact quite dangerous because it allows a majority to infringe upon the rights of a minority. Therefore, in encouraging the states to participate in a strong centralized government under a new constitution and replace the relatively weak Articles of Confederation, Madison argued in his paper “Federalist No. 10” that a special interest may take control of a small area (such as a state), but could not easily take over a large nation. A larger nation would therefore better safeguard republicanism.

Delegates at the Philadelphia Convention were concerned about decentralization of power caused by “too much democracy,” as they perceived from democratic nations such as the Iroquois. In 1787, while the Constitution was being drafted, individual states were making separate agreements with European and Native American nations apart from the Continental Congress. Without the Convention’s proposed central government, the framers feared that the United States under the Articles of Confederation would fail to keep the country intact.

Influences on the Constitution

Several ideas in the Constitution were new, associated with the combination of consolidated government, along with federal relationships with constituent states. The Constitution’s due process clause was partly based on common law and on the Magna Carta (1215), which established the principle that the Crown’s powers could be limited and the once-sovereign King could be bound by law.

The most important influences on the Constitution from the European continent were from Enlightenment thinkers John Locke and Montesquieu. Locke advanced the principle of consent of the governed in his Two Treatises of Government: essentially, government’s duty in a social contract with the sovereign people was to serve them by protecting their rights to life, liberty, and property. Montesquieu emphasized the need for balanced forces pushing against each other to prevent tyranny. In his book The Spirit of the Laws, he argued for the separation of state powers into the legislative, executive, and judicial branches of government.

The Debate over Slavery

Slavery and the slave trade were points of contention between Northern and Southern states at the Constitutional Convention.

Learning Objectives

Explain how the debate over slavery impacted the process of ratifying the United States Constitution

Key Takeaways

Key Points

  • Slaves comprised approximately one-fifth of the US colonies ‘ population, and the issue of regulation of slavery under the new Constitution was a point of contention between the North and South.
  • One of the most contentious slavery-related questions was whether slaves would be counted as part of the population in determining taxation and representation in Congress.
  • Constitutional Convention delegates reached a compromise that would count slaves as three-fifths of a person for the purposes of congressional representation and taxation.
  • Another issue was what should be done about the international slave trade and importation of slaves. To appease Southern slave-holding states, Congress agreed not to ban slave importation until 1808.

Key Terms

  • James Wilson: One of the US Founding Fathers and signers of the Declaration of Independence.
  • Three-Fifths Compromise: A compromise between Southern and Northern states in which a portion of the slave population would be counted for representation and taxation purposes.

Among the most controversial issues confronting the Constitutional Convention delegates was slavery. Slaves comprised approximately one-fifth of the population in the US colonies; in the Southern colonies, they accounted for 40% of the population. Whether slavery was to be regulated under the new Constitution was a point of contention between the North and the South, with several Southern states refusing to join the Union if slavery was not allowed.

Representation

One of the most contentious slavery-related questions was whether slaves would be counted as part of the population in determining representation in Congress, or if they would be considered property and therefore exempt from representation. Delegates from states with large populations of slaves argued that slaves should be considered as people in determining representation. At the same time they argued slaves should be considered property if the new government were to levy taxes on the states based on population. Delegates from states where slavery had become rare argued the opposite: that slaves should be included in taxation but not in determining representation.

Three-Fifths Compromise

Delegates James Wilson and Robert Sherman proposed the Three-Fifths Compromise, which the convention eventually adopted. The final compromise established the policy of counting each slaves as only three-fifths of a person. This reduced the power of the slave states relative to the original Southern proposals, but increased it over the Northern proposal.

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Justice James Wilson: Along with Robert Sherman, Wilson proposed the Three-Fifths Compromise.

The three-fifths ratio was not a new concept; it had originated with a 1783 amendment proposed to the Articles of Confederation. The amendment was to have changed the basis for determining each state’s wealth and, hence, its tax obligations, from real estate to population, as a measure of wealth-generating ability. The proposal by a committee of the Congress had suggested that taxes “shall be supplied by the several colonies in proportion to the number of inhabitants of every age, sex, and quality, except Indians not paying taxes.” The South immediately objected to this formula because it would include slaves, who were viewed primarily as property, in calculating taxes owed. As Thomas Jefferson wrote in his notes on the debates, the Southern states would be taxed “according to their numbers and their wealth conjunctly, while the Northern would be taxed on numbers only.”

After proposed compromises of one-half by Benjamin Harrison of Virginia and three-fourths by several New Englanders failed to gain sufficient support, Congress finally settled on the three-fifths ratio James Madison proposed. While the original amendment to the Articles of Confederation had failed, the Three-Fifths Compromise was passed without extensive debate in the forming of the new Constitution.

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Senator Roger Sherman: Sherman along with James Wilson proposed the Three-Fifths Compromise.

International Slave Trade

Another issue at the convention was what should be done about the international slave trade, particularly slave importation. The three states that still allowed importation threatened to leave the convention if the trade was banned. Anti-slavery delegates were forced to yield in their demands that slavery practiced within the confines of the new nation be completely outlawed. However, they continued to argue that the Constitution should prohibit states from participating in the international slave trade, including importation of new slaves from Africa and exportation of slaves to other countries.

Because of its contentious nature, and because delegates did not want ratification of the Constitution to fail because of the conflict over slavery, the Convention postponed its decision on the slave trade. A special committee instead negotiated another compromise: Congress would have the power to ban slave importation, but not for at least 20 years, which would be 1808. In exchange for this concession, provisions that allowed for taxation of slave trades in the international market would strengthen the federal government’s power to regulate foreign commerce.