The US Constitution
The inspirational story behind America's founding document.
The US Constitution is easily one of humanity’s greatest documents. Beyond being America’s supreme law of the land, it is also the oldest republican constitution still in use. Every September 17, the citizens of such a glorious republic warmly recall the writing of their founding document on that date in the year 1787. Today, it continues to shine as a beacon of democracy and freedom to the rest of the world.
Articles of Confederation
From 1774 to 1781, the Second Continental Congress met at Philadelphia’s Independence Hall, where it functioned as a de facto government of the United States. Delegates were selected from the revolutionary committees of the Thirteen Colonies.
America’s first national government was constituted under the Articles of Confederation and Perpetual Union. First drafted in 1777, it was fully written out and adopted by 1781. Under the Articles, America effectively lacked a national government. All the power resided in the states. Amendments to the constitution required the legislative consent of all 13 states. Such unanimity was very unlikely and thus impractical.
The Articles of Confederation were too weak. Britain and Spain flagrantly violated US sovereignty through their continued colonial presence, despite the terms of the Paris Treaty that ended the American Revolution. So did non-government actors, such as the Barbary pirates. The Treasury lacked any funds to fend off these foreign threats. By 1786, the newly founded US government faced the grim prospect of defaulting on its war debts.
A new Constitution
On May 14, 1787, a Constitutional Convention was held to write up a new national body of law. There were two major alternatives proposed.
The first was the Virginia Plan. It proposed a bicameral Congress, with both chambers apportioned by population. It was favored by the most populous states of the Union. Philosophically, it invoked John Locke’s consent of the governed, Montesquieu’s separation of powers, and Edward Coke’s civil liberties.
The second was the New Jersey Plan. It proposed a unitary body, with one vote per state. It was favored by the less populous states of the Union. Philosophically, it looked to English traditionalists, such as Edmund Burke and William Blackstone, who emphasized the powers of the legislature.
The two alternatives were synthesized into what became known as the Connecticut Compromise, or Great Compromise. It proposed that proportional representation would be found in the House of Representatives, while equality of state representation would be found in the Senate. This is the origin of the modern distinction between the Senate and Congress.
In addition to the Great Compromise, there were other accommodations made. The rivalry between the North and South was put at ease with the Three-Fifths Compromise. Additional changes were made regarding the presidency and the federal judiciary.
After months of deliberation, the Convention finally came to an end in September. The final draft of the Constitution was presented on September 12. It had seven articles, a preamble, and a closing endorsement. The document was finalized on Monday, September 17, 1787. This momentous event was later commemorated by Howard Chandler Christy’s 1940 painting.
Ratification
Within three days, the Constitution was handed over to Congress, which was based in New York City. It was given to the states for ratification beginning on September 28, 1787.
The Federalists supported the new Constitution, but the Anti-Federalists opposed it. In support of ratification, three of America’s most brilliant minds—James Madison, Alexander Hamilton, and John Jay—penned their famous Federalist Papers.
By the year’s end, three states—Delaware, Pennsylvania, and New Jersey—had already ratified the Constitution.
As the year 1788 dawned, more states would follow. Connecticut and Georgia adopted the Constitution. With some hesitance, it was accepted by Virginia, New York, and Massachusetts. Federalists gave in a little, and promised to add a Bill of Rights to ensure protection of individual liberties. This diffused all remaining opposition to the new national law of the land. New Hampshire became the ninth state to ratify. Congress formally adopted the Constitution as the law of the land on June 21, 1788. It became effective on March 4, 1789, which is 234 years ago.
Influences
The Constitution had an eclectic set of influences. Due process was based on the English common law tradition, as enshrined in the medieval Magna Carta. This was the foundation of English liberty against arbitrary power. The idea of separation of powers was found in the political treatises of John Locke and the French Montesquieu.
The most cited political theorists were William Blackstone, David Hume, Locke, and Montesquieu. The Scottish Enlightenment exerted a heavy influence on the American Founding. Hume was particularly admired by Benjamin Franklin, who studied the Scotsman’s works at Edinburgh in 1760. Both men embraced the idea that public officials should be unpaid, and that the lower class were better judges of public character. It is arguable that the Iroquois Confederacy influenced the American Founders as well.
Text
The Constitution has four sections. First, it begins with an introduction, called the Preamble. Then there is a list of seven Articles, which define the government’s powers. It ends with an untitled closing endorsement, with the signatures of 39 Founders. Since the Founding, 27 Amendments have been added under the process laid out in Article V.
Preamble
The Preamble goes as follows: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
The phrase “We the People” represented a radically new idea in political thinking. It showed that the average citizen was the source of the government’s legitimacy.
Article I
The Constitution has seven Articles, which lay out the federal government’s basic structure and functions. The first of these, Article I, is about Congress. Section 8 lists the powers of the legislature.
Congress is allowed to tax, borrow, pay debt, and provide for the common defense. In other words, national security.
Congress can regulate financial issues, such as coining money.
Congress can regulate local militias, and suppress insurrections.
Congress has the power to handle various administrative issues, such as naturalization or uniform weights and measures. This includes managing post offices, roads, and patents.
Most importantly of all, Congress has the power to declare war. It defines the rules of engagement in such conflicts.
The Necessary and Proper Clause is a catch-all part of the Constitution which empowers Congress to practically implement its sovereignty.
Article I, Section 9 gives an express list of eight specific limitations on the powers of Congress.
Article II
The second Article deals with the executive branch, namely the president and vice president. The president is the head of the federal government. He is the head of state, and head of government.
Article II was modified by the 12th Amendment, which begrudgingly recognizes the necessity of political parties. It was also changed by the 25th Amendment, related to presidential succession.
The president must take an oath to protect and defend the Constitution. He is the nation’s commander-in-chief, and controls the armed forces. The president negotiates foreign treaties, with the consent of the Senate.
The president’s job is to ensure that the laws are faithfully executed. He is given the discretion to hand out pardons, although he cannot absolve himself from an impeachment by Congress.
The president must report to Congress in his State of the Union address. Under the Recommendation Clause, he must make proposals to Congress that are necessary and useful. The president can call together Congress for special occasions.
Section 4 lays out the process of impeaching and removing the president or other federal officials. Presidents can be legitimately deposed on convictions related to treason, bribery, or other high crimes and misdemeanors.
Article III
The third Article deals with the third branch of government: the judiciary. It protects the right of trial by jury in all criminal cases, and formally defines the crime of treason. It meticulous lays out the process for judicial proceedings under the Constitution.
Although Article III does not expressly contain the idea of judicial review, the idea dates back to the Founders. The Supreme Court is given the power to decide issues related to state law on a case-by-case basis, but only by necessity.
Section 3 contains a special rule that the federal definition of treason cannot be changed by a simple majority law. It defines treason as an overt act of making war, or materially aiding those at war with the US. Accusations must be confirmed by at least two witnesses. But Congress is still permitted to punish lesser types of subversive activity, such as conspiracy.
Article IV
The fourth Article explains the relationship between the national and state governments. The Privileges and Immunities Clause forbids state governments from discriminating against the citizens of other states. It enables extradition between states, and lays out the principle behind freedom of movement. The Territorial Clause gives Congress the power to regulate federal property and other non-state territories. Lastly, Section 4 mandates that every American state be a republican form of government.
Article V
Article V gives the process for amending the Constitution.
A proposal must be ratified by two-thirds majority in Congress, or else by a national convention. The latter is formed with the consent of two-thirds of the state legislatures.
There must be three-fourths approval by the states, including the legislatures and ratification conventions. The latter were only used one time, for the 21st Amendment.
Certain parts of the Constitution are explicitly protected from any future changes.
Article VI
The sixth Article establishes the Constitution as the ruling body of law, which overrules all state laws. It nationalized the debt of the states. It explicitly prohibits the use of religious tests for public office.
Article VII
Article VII laid out the process for the eventual ratification and adoption of the Constitution by the states.
Closing endorsement
The Constitution ends with a signature on September 17, 1787, signed by 39 delegates. The endorsement was primarily penned by Governor Morris, and presented to the Constitutional Convention by Ben Franklin. The endorsement is only meant as a means of authentication. It says nothing additional about the structure and nature of the US government.
Amendments
The 1st Amendment protects the freedoms of religion, speech, press, assembly, and petition. The Free Exercise Clause protects a person’s right to hold whatever religious beliefs they want, and to exercise those beliefs. The Establishment Clause prohibits the government from establishing a national Church or favoring any particular religious denomination.
The 2nd Amendment protects the right of individuals to keep and bear arms. But it also allows the government to impose certain limits on the manufacture, ownership, and sale of weapons. It was motivated by the British attempts to confiscate the colonists’ weapons at the outbreak of the Revolutionary War.
The 3rd Amendment forbids the forced quartering of soldiers in people’s homes in peacetime.
The 4th Amendment protects against unreasonable search and seizure.
The 5th Amendment guarantees due process, and it protects against double jeopardy—meaning you can’t be punished for the same crime twice. You do not have to testify against yourself in court. Under the doctrine of eminent domain, the government must compensate any private property that it seizes for public use.
The 6th Amendment provides the right to a jury trial, and lists protections of individuals accused of crimes. There is a right to legal cousin. Witnesses must testify in the presence of the accused. The Supreme Court added the Miranda warning requirement in 1966, the famous “You have the right to remain silent” phrase.
The 7th Amendment is similar to the previous one, but applied to federal civil cases. Courts cannot overturn a jury’s findings.
The 8th Amendment protects against cruel and unusual punishment, and prohibits excessive bails and fines.
The 9th Amendment is a blanket statement that assures the citizens of rights which are not expressly listed in the Bill of Rights.
The 10th Amendment gives all other government powers to the states. This is the principle of federalism.
The 11th Amendment gives certain immunity protections to the states against the federal government.
The 12th Amendment changed the way that presidents and vice presidents are elected. It overrode Article II, Section 1, Clause 3 of the Constitution.
The 13th Amendment abolished slavery after the Civil War.
The 14th Amendment extended citizenship to the former slaves.
The 15th Amendment allowed black people to vote.
The 16th Amendment allows Congress to collect taxes on income, reversing earlier constitutional restrictions.
The 17th Amendment allows for the direct election of senators. It overrode Article I, Section 3, Clauses 1-2.
The 18th Amendment enacted Prohibition of alcohol.
The 19th Amendment allowed women to vote.
The 20th Amendment shortened the intermission period between Election Day and the beginning of the terms of the president, vice president, and Congress. For the president, inauguration day changed from March 4 to January 20. For Congress, it was changed to January 3.
The 21st Amendment repealed the 18th Amendment. It set the drinking age to 21.
The 22nd Amendment formally limits the president to just two terms in office. This is because President FDR ran for a third and fourth term in the 1940s.
The 23rd Amendment extended the right to vote to people living in the District of Columbia. Two electors were added to the Electoral College.
The 24th Amendment prohibited the use of a poll tax. This was an attack on Jim Crow laws, such as literacy tests and certain residency requirements.
The 25th Amendment stipulates the process of succession for the president, vice president, and other high offices. It overrode the ambiguous rules under Article II, Section 1, Clause 6.
The 26th Amendment lowered the voting age to age 18, largely because of student activism against the Vietnam War.
The 27th Amendment prevents members of Congress from giving themselves pay raises during a current session.