This chapter is about the creation of government in the
United States and the formulation of the constitutional
rules that structure American politics today.
The text pays particular attention to the conflict between
democracy and liberty as the new national government emerged.
The American Revolution
and the Declaration of Independence
Initially, the American Revolution was fought more to
preserve an existing way of life than to create something
new. The colonists wanted to preserve the English
constitution and protect their own rights as English subjects
in the face of new British policies on trade and taxation
that threatened traditional rights of life, liberty, and
property.
Though it was sparked by concern for liberty, the revolution
also stimulated the development of sentiment for popular
sovereignty. The tension between these two principles would
animate much of American politics for years to come.
By the spring of 1776, the colonists concluded that
separation from Great Britain was inescapable. Several of
the colonial legislatures declared their independence from
British control and adopted their own constitutions.
In June, the Continental Congress appointed a special
committee to draft a declaration of independence and named
Thomas Jefferson of Virginia to write the document. With only minor revisions by John Adams and Benjamin Franklin,
Jefferson's draft was brought to the floor of the Congress on
July 2 and adopted without dissent (New York abstained) on
July 4, 1776.
The ideas in the Declaration of Independence reflected the
political culture of the era and remain part of the American
political tradition today. The primary influence on
Jefferson's work was the writing of the English philosopher
John Locke, especially his widely read work, The Second Treatise on Government. Both Locke and Jefferson posed the
seemingly outrageous argument that legitimate government
could only be established by the people and once established,
maintained with their consent. The following three
statements summarize their viewpoint:
(1) Human beings possess rights that cannot legitimately
be taken from them.
(2) People create government to protect these rights.
(3) If government fails to protect these rights or
itself becomes a threat to these rights, people can withdraw their consent from the government and
create a new one of their own choosing.
The Continental Congress took a practical step toward
independence by passing a resolution advising each colony to
create a new government free from royal control. Spurred by
the outbreak of hostilities, the upsurge in sentiment for
independence, and the Declaration itself, revolutionary conventions in eleven of thirteen colonies created new state
governments by the end of the war in 1783.
Most of the state conventions wrote state constitutions.
Many Americans believed that written constitutions were the
best safeguard against misunderstandings and transgressions,
similar to contracts in the business world.
These state constitutions tell us a great deal about the
political ideas that prevailed during the period. Most of
the constitutions contained a bill of rights, that is, a list
of individual rights that could not be violated by
government, even by a government based on popular consent.
State constitutions also put restrictions on the powers of
the executive. It was widely believed that all rulers are
tempted by the attractions of power and are prone to tyranny.
The states took various steps to guard against the threat of
executive tyranny: election of the executive by the
legislature; limitations on terms of office; restrictions on
the power to make appointments; denial of executive veto
power over legislative action; and restrictions on the governor's role in the budget process.
In contrast to the way they treated executives, state
constitutions gave a good deal of power to legislatures. The
legislature became supreme and took over many of the roles
that had belonged to the executive under the British system.
Legislatures were given the power to declare war and make peace, grant pardons, and conduct foreign policy.
The new state constitutions also required frequent elections.
Believing that even an elected legislature can become
tyrannical if its members remain in office too long, most
states required annual elections for their lower Houses and
short legislative sessions.
Finally, the states limited voting rights. Although the new
state constitutions were far more democratic than anything
else then existing in the world, the retention of property
qualifications for voting and office holding made these
constitutions less democratic than we expect today.
Large number of white males (30 to 40 percent) could not vote
because they did not own the requisite amount of land, could
not afford to pay the poll tax, or didn't pay the required minimum property tax. Women, slaves, and "free blacks"
(blacks who were not slaves) were denied the right to vote as
well.
The Articles of Confederation
The Founders almost certainly did not foresee the creation of
a single, unified nation as the goal of the American
Revolution. At most, the members of the Continental Congress and political leaders in the states envisioned a loose
confederation between the states, with each state retaining
most of its powers and independence.
This should not be surprising in light of the prevailing view
of the time. Most political theorists of the period believed
that government based on popular consent and committed to the
protection of individual rights was possible only in small,
homogeneous republics where government was close to the
people and fundamental conflicts of interest among the people
did not exist.
This sentiment led to the adoption of America's first
constitution, the Articles of Confederation. The Articles
created in law what had existed in practice from the time of
the Declaration of Independence: a loose confederation of
independent states, with little power in the central government, where most of the decisions about the issues of
the day took place in the state legislatures.
Each state jealously guarded and exercised it independence
during the war, while the Continental Congress tried to
coordinate their efforts. Under the Articles, there was a
central government of sorts--the Congress. This institution,
however, had little to do and virtually no power. It could make war or peace, but it had no power to levy taxes to
pursue either goal.
The new national government could not regulate commerce
between the states or deny states the right to collect
customs duties. It had neither a chief execute to carry out
the laws it passed, nor a judiciary to adjudicate disputes
among the states. The new government was given the power to establish a postal service, set uniform standards of weights
and measures, and manage affairs with the Indians.
Such powers were almost impossible to exercise, however, in
light of the rule that all congressional legislation had to
be approved by nine of thirteen states. Finally, any defects
in the new constitution were difficult to remedy because
amendments to the Articles required the unanimous approval of the states.
The Articles did what their authors wanted: preserve the
power, independence, and sovereignty of the states, and
ensure that the central government did not encroach on the
liberty of the people. Unfortunately, however, the Articles
were unable to solve many of the nation's problems. One problem concerned the debt.
The central government relied on states voluntarily to comply
with its annual tax assessment. Because many states were
unwilling to cooperate, many of the bonds and notes of the Confederate government became worthless and the
Confederation's ability to increase its borrowing was
stymied.
Another problem had to do with the government's inability to
defend American interests in foreign affairs. Without a
chief executive, with veto power in the hands of the states, and without a standing military, the confederation lacked the
capacity to reach binding agreements with other nations or deal with a wide range of problems that originated outside
the borders of the new nation.
Finally, the government under the Articles was unable to
prevent the outbreak of commercial warfare among the states.
The result was slow economic growth and the threat of
financial chaos.
The Constitutional Convention
The failures of the Articles of Confederation led most of the
leading citizens in the Confederation to believe that a new
constitution was needed for the fledgling nation. This was
not, however, the only concern of these citizens. Many of
the most influential men in the Confederation were concerned about the democratizing and egalitarian tendencies set loose
by the Revolution. The common people of the day were
convinced by the egalitarian rhetoric that the success of the
Revolution would bring substantial improvements in their
lives. In contrast, the leaders of the Revolution were not
advocates of broad-based voting participation and political
equality.
The Founders were republicans who believed that government
must be based on popular consent, limited in its powers, and
insulated against the sometimes rash judgments of the
majority. Republicans thought that these objectives could
best be obtained by the election of representatives by an
electorate based on a restricted suffrage, and by the
prevention of the concentration of governmental powers
(executive, legislative, and judicial) in a single governing
body.
Although republicanism was far more democratic than other
political doctrines in the late eighteenth century, it was
less democratic than we would find acceptable today because
of the limitations it placed on participation. The
philosophy of republicanism held that political participation should be limited to those men most fit by birth, education,
and standing in the community to exercise judgment and wisdom
in public affairs.
Elected representatives were not to act as delegates or
as conduits for popular views, but were instead supposed to
exercise their own judgment and deliberate among themselves.
To most of the framers, republicanism and democracy were not
identical. Republicanism represented a step on the road to
democracy, with its belief in popular consent and indirect
election of public officials, yet it retained enough
aristocratic or elitist features to keep it well short of the
democratic ideal.
The Revolution was launched in the name of independence,
republicanism, and free trade, but over time it began to
engage the allegiance of the common people. In 1776, for
example, Pennsylvania created a state government ruled by an
annually elected legislature chosen by almost anyone who could pay a small poll tax. Although some observers regarded
such governments as the most perfect instruments of popular
sovereignty, others believed that they would result in poor
laws and poor policies.
One of the central axioms of the republican doctrine was that
in a good society people should be allowed to accumulate,
use, or exchange property as they wished, no matter how much
they possessed compared to others. Toward the end of the
1770s and the early 1780s, however, this principle stood in
conflict with the growing popular mood of hostility toward
privilege of any kind, whether in social standing, education,
or wealth.
A number of state legislatures passed measures designed to
protect debtors, thus undermining the financial position of
debt holders. Although public opinion favored property
rights, it also sympathized with farmers who were hard
pressed to pay their debts. Indeed, many citizens believed
that many creditors had accumulated notes speculatively or
unfairly and were not entitled to full repayment.
By 1787, most of America's economic, social, and political
leaders were convinced that the American experiment in self-
government was in great danger of failing. The Article of
Confederation had not provided a government capable of
protecting or advancing the new nation's interests in the
world, paying its debts, guaranteeing domestic tranquility,
or establishing a unified national economy.
Many Americans also believed that democratic and leveling
tendencies were threatening to undermine the republican
principles of the new nation. This situation led to calls
for a change in the government that resulted in the
Constitutional Convention in Philadelphia in 1787.
The 55 delegates from the states that took part in the
convention's deliberations were not ordinary people. For the
most part, the delegates were wealthy, well educated men who
held positions of prestige in their respective states. Most
were also fairly young (the average age was barely 40) and had been active in the revolution and in the postwar state
governments.
For years, scholars have debated the motives and intentions
of the framers. Historian Charles Beard believed that the
framers were motivated by the desire to protect their
personal economic interests. He argued that those who
controlled the convention and the ratification process were
owners of public securities interested in a government that
could pay its debts, merchants concerned about the protection
of commerce, and land speculators interested in the
protection of property rights.
In contrast, other historians believe that Beard
overemphasized the degree to which the framers were driven by
their own financial interests and that he failed to give
credit to other, more noble motivations. However, most
scholars agree that Beard was close to the mark in suggesting that broad economic and social-class motives were at
work in shaping the actions of the framers. It appears that
a complex mixture of motives, ranging from the economic to
the philosophical, was at play among the delegates.
The delegates to the convention agreed with one another on
many fundamental points. One was the need for a new
constitution to replace the Article of Confederation.
Another point of consensus was the need for a substantially
strengthened national government. The most important point
of agreement was the desire to find a formula for instituting
a republican government--one based on popular consent but one
whose deliberations and decisions would not be directly or
unduly swayed by public opinion.
Despite this general agreement on principles, there were
several major points of contention among the delegates. One of the most intense debates concerned the so-called Virginia
Plan for the organization of a new national government, which
was drafted by James Madison. This proposed plan of
government created a strong central government controlled,
for the most part, by the wealthiest and most populous
states: Virginia, Massachusetts, and Pennsylvania. The
power of the central government would be in the national legislature whose seats would be apportioned to the states on
the basis of population.
Alarmed by what they believed to be a naked power grab by the
larger states, the smaller states developed the New Jersey
Plan, whose central feature was a single-house legislature in
which each state had but a single vote regardless of population size. The New Jersey Plan envisioned a government
in which each of the states remained sovereign while the Virginia Plan envisioned a government in which national
sovereignty was superior to state sovereignty.
The result of this debate was a compromise plan hammered out
by the Committee of Eleven. The Great Compromise or
Connecticut Compromise, as it was called, had the key feature of a two-house national legislature in which each state's
representation in the lower house would be based on
population (favoring the large states), while representation
in the upper house was to be equal for each of the states
(favoring the small states).
Slavery was another issue of contention during the
convention. Although many non-southern delegates opposed
slavery (and some attempted to outlaw it), the delegates
ultimately recognized that the southern states (where close
to half of the total population of the Confederation lived) would never agree to a new constitution if it outlawed
slavery.
Non-southern delegates recognized that an attempt to prohibit
slavery would jeopardize the entire effort to create a new
national union. Indeed, southern bargaining power was so
substantial that the delegates added three provisions to the
Constitution that explicitly recognized the legal standing of slavery: the three fifths compromise which counted a slave as
three-fifths of a person for purposes of representation, a
provision forbidding the enactment of federal legislation
against the slave trade until the year 1808, and a
requirement that officials in non-slaves states cooperate to
return runaway slaves to their owners in the slave states.
The delegates essentially postponed hard decisions on slavery
in the interest of forming the new union.
The issue of the presidency posed another problem for the
delegates. Although most delegates agreed that a single
executive was necessary, they could not agree on how a chief
executive would be selected. The compromise eventually
struck involved the selection of an electoral college, based on the total number of representatives from each of the
states in Congress. This electoral college would then elect
a president.
The Constitution contains seven different parts or Articles,
each dealing with a different aspect of the national
government's structure or power. The first three Articles
lay out the organization of each of the three branches of the
national government: legislative, executive, and judicial (in
that order).
Article IV deals with interstate relations, requiring that
full faith and credit be given other states' acts and that
criminal fugitives be returned to the states in which they
are charged.
Article V establishes procedures and ground rules for
amending the Constitution.
Article VI assumes the debt of the Confederation.
It also makes the Constitution, laws, and treaties of the
U.S. the supreme law of the land and requires an oath of
office for U.S. and state officials.
Article VII provides that the Constitution will be
established when ratified by conventions in nine states.
The Constitution was based on a different philosophy of
government than was the Articles of Confederation. The
Articles of Confederation envisioned a national structure as
a union of politically independent units, with little power
in the hands of the central government.
In contrast, the Constitution fashioned a federal system, in
which some powers were left to the states, some powers were
shared by the states and the national government, and some
powers were granted exclusively to the central government.
Although federalism requires a sharing of powers, the
Constitution tilts authority toward the center. The
supremacy clause in the Constitution states that the central
government is the ultimate power in the nation.
The Constitution centralizes power still more by exclusively
assigning the following important powers and responsibilities
to the national government: the power to regulate commerce, provide a uniform currency, establish uniform laws on
bankruptcy, raise and support an army and navy, declare war,
collect taxes and customs, and provide for the common defense.
Finally, the elastic clause in the Constitution states that
Congress has the power to "make all laws which shall be
necessary and proper" for carrying out its specific powers
and responsibilities. This particular provision of the
Constitution became one of the foundations for growth of the
federal government in the twentieth century.
By creating a republican form of government, the framers
structured a government based on popular consent and some
popular participation that limited office holding, restricted
the right to vote, placed obstacles in the path of
majoritarian democracy, and limited the purposes and powers of the government.
To ensure that the new government would not overstep the
limits of power set by the Constitution, the first ten
amendments, the Bill of Rights, specifically delineated the
rights which government could not abridge. Separation of
powers with checks and balances further ensured that the federal government would not exceed its bounds.
To avoid the leveling tendencies and tyranny of unbridled
democracy, the framers created a structure of government in
which people ruled only indirectly. The framers attempted to
check the unbridled passions of the people (as the framers
saw them) through the electoral process, by providing that
representatives, senators, and the president be elected by
different methods, for different terms of office, from
different constituencies, and (often) at different times.
Moreover, they established a cumbersome method of amending
the Constitution. In this way, the framers hoped to ensure that the popular will in the short run could not
overwhelm those who governed.
Balanced government was another central feature of the new
Constitution. The central idea of balanced government was
that concentrated power of any kind is dangerous. The
solution they adopted to the danger of concentrated power was
to divide power among legislative, executive, and judicial
branches. To further ensure that power could not be
exercised in a tyrannical fashion, the framers saw to it that
the legislative, executive, and judicial branches would check
one another. Each branch of government was given its own
power, but no branch was able to exercise all of its power on
its own. Each branch had a check on the power of the others.
The framers were particularly worried that a system which is
too democratic might eventually threaten private property.
Consequently, they included several provisions in the
Constitution to protect property rights. One constitutional
provision prevented states from helping debtors by inflating
money, forgiving debts, or otherwise infringing on the
property of creditors.
Another provision stipulated that debtors could not escape
legal and financial obligations by fleeing to another state.
This provision is known as the "full faith and credit" clause
which says states must honor the public acts, records, and
judicial proceedings of other states.
In addition, the Constitution said that the new government
would honor debts incurred under the Articles of
Confederation and pay all creditors. Finally, the
Constitution even protected the private property of slaves by
requiring states to return escaped slaves to their owners.
The Constitution created a national economy regulated by
government. Congress was given the power to regulate
international and interstate commerce, coin money and
determine its value, establish laws governing bankruptcy, and
protect the financial fruits of invention by establishing patent and copyright laws. At the same time, the
Constitution broke down trade barriers by forbidding states
from imposing taxes or duties on other states' exports,
entering into foreign treaties, coining money, or laying any
duties on imports or exports.
Ratification
Once the Constitution was written and accepted by the
Congress, the document was sent to the states for
ratification. Under Article VII of the new Constitution, the
approval of nine of the thirteen states was required for
ratification.
Much of the debate that had taken place during the
constitutional convention shifted to the individual state
conventions where Federalists (those who wanted the
Constitution) and Anti-Federalists (those who opposed the
Constitution) squared off over the question of ratification.
The Federalists did a better job of making their case than
the Anti-Federalists. Alexander Hamilton, James Madison, and
John Jay wrote a number of influential essays in support of
the new Constitution under the pen name "Publius." These
essays were subsequently published as the Federalist Papers
and stand today as important commentaries on the document.
Opposition to the Constitution came mostly from less wealthy,
rural interests; from those who advocated a small scale
decentralized republican government; and from those concerned about the absence of a bill of rights. The latter argument
proved to be the Anti-Federalists strongest point.
The Federalists initially argued that a bill of rights was
unnecessary because state constitutions had bills of rights.
Moreover, they said, the national government created by the
new Constitution would not be powerful enough to threaten
individual rights. In order to win support for ratification, however, the Federalists promised to support the addition of
a bill of rights after ratification.
Ratification of the Constitution was close. Most of the
small states quickly approved, attracted by the formula of
equal representation in the Senate. In the largest and most
important states, the vote was exceedingly close. Despite
the passions that were released during the debate over the
refashioning of the nation's fundamental law, Americans
quickly accepted the new order and eventually came to venerate the Constitution.
The Constitution in American Politics
The framers believed that liberty and popular sovereignty
were contradictory. Because they especially valued liberty,
they tried in a variety of ways to control the play of
popular democracy in American political life, using
constitutional mechanisms. The founders did not fully
appreciate, however, the extent to which liberty, popular
sovereignty, and political equality are compatible.
The framers' contribution to the advance of democracy then is
ambiguous. While the framers tried to control popular
sovereignty and political equality, they made an important
contribution to democracy by strengthening and protecting
political liberty. In the long run, the framers' efforts to contain democracy were not successful in that our political
life has become considerably more democratic than the framers
imagined or wanted.
There are several ways by which the Constitution can change.
The most obvious, of course, is by formal amendment.
Amendments can be proposed either by a two thirds vote of
Congress or by a constitutional convention convened after
petitions from two thirds of the states. Amendments must be
ratified by three-fourths of the state legislatures or by
special conventions called in three fourths of the states.
The Constitution can also change through judicial
interpretation. The main interpreter of the fundamental law
of the land, at least since the time of Chief Justice John
Marshall in the early nineteenth century, has been the
Supreme Court. The doctrine of judicial review, claimed by Justice Marshall and the Supreme Court in the landmark case
of Marbury v. Madison (1803), holds that it is the exclusive
responsibility of the high court to determine if the actions
of the states and the other branches of the federal
government conform to the Constitution.
Finally, the Constitution can change through political
practices. Historical practice and legislative actions have
changed the constitution in ways totally unanticipated by the
framers.
Contrary to
expectations, the election of the president is not the
outcome of the deliberations of an actual electoral college
or action by the House of Representatives but of democratic
elections--a change brought about by the spread of popular democracy, the broadening of the franchise, and the rise of
political parties (none of which are even mentioned in the
Constitution).