We the People: THE AMERICAN CONSTITUTION AFTER 200 YEARS : The Constitution of the United States of America

The text of the Constitution and the Bill of Rights reproduced on these pages is accompanied by notes and commentary prepared for The Times by Prof. John Alexander, a professor of history at the University of Cincinnati, to discuss the major provisions and the personalities, issues and background that shaped the nation’s charter.

Alexander, who received his Ph.D. from the University of Chicago in 1973 and joined the University of Cincinnati faculty in 1969, recently completed a book-length manuscript, “The Selling of the Constitutional Convention,” for the documentary ratification project of the University of Wisconsin. He is also the author of “Render Them Submissive,” a study of poverty in Philadelphia from 1760 to 1800 published by University of Massachusetts Press.

INTRODUCTION

In 1937, during the sesquicentennial celebration of the Constitution, President Franklin D. Roosevelt said that, “Like the Bible, it ought to be read again and again.” He surely was right about studying the Constitution, but Roosevelt also said it “is an easy document to understand.” On that point, he surely was wrong. The Constitution is not easy to understand.

The first difficulty in knowing what the delegates meant us to understand from their work is that the historical record of its creation is sparse and incomplete. Delegates worked under a self-imposed rule of secrecy; notes kept by Virginia’s James Madison are almost the only comprehensive record of the deliberations, and even they are flawed.

More important, the Constitution sprang from a series of compromises. “We had Clashing Interests to reconcile,” said Pierce Butler of South Carolina. Of necessity, the system created by the Constitution resulted, he said, “from a spirit of Accommodation to different Interests.” And, to improve the Constitution’s chances of being adopted, delegates deliberately utilized euphemistic or vague phrasing; as Maryland delegate Luther Martin admitted, the delegates “anxiously sought” to avoid words that Americans might find “odious.”

Despite references to “Justice” and the “general Welfare,” the Constitution represented a retreat from ideals stated in the Declaration of Independence, which declared that all people had an unalienable right to life, liberty and the pursuit of happiness. The convention delegates were not willing to be so bold.

In part because of this--some critics opposed ratification on grounds that the Constitution contained no Bill of Rights--the subsequent fight over adoption of the Constitution was just that: a fight, a close, often-bitter struggle that lasted into the early summer of 1788. During that fight and afterward, the Founding Fathers themselves did not always agree with each other on what some parts of their handiwork meant.

Small wonder that sharp debates among their descendants have never ended, and almost certainly never will.

Preamble

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 of the United States” simply, elegantly proclaimed that the Constitution had a national, not a state, focus. Yet the delegates in Philadelphia were practical politicians, committed to the axiom that “politics is the art of the possible” and well aware of the difficulties they faced in winning popular acceptance of their work. Thus the Preamble was artfully crafted to win political points. Specifically, since the convention had been authorized to revise--not destroy--the Articles of Confederation, which had reserved ultimate power to the states, the framers knew they would be challenged on this profound shift in power. So they linked it to reassuringly familiar goals stressed in the Articles of Confederation--providing for the common defense, protecting liberties, and supporting the general welfare. Nor did they permit the word “national” to appear in the Preamble or anywhere else in the new document, although the delegates had freely acknowledged to one another throughout the convention that their first priority was to end the disarray of a state-dominated system.

Similarly, the references to creating a more perfect Union and insuring “domestic Tranquility” were reminders to their fellow Americans that the existing central government was powerless to suppress the horrors of Shays’ Rebellion in Massachusetts and was so insensitive to the needs of frontier settlers that Western farmers were on the brink of rebellion themselves over congressional plans to give away any American right to free passage on the economically vital Mississippi River.

Article I

Section 1

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

* Some delegates argued against a two-house legislature, fearing it would weaken the influence of smaller states. Nevertheless, Massachusetts delegate Rufus King expressed the dominant view when he said an upper house was needed “to check the first branch, to give more wisdom, system, and stability to the Government.” The adoption of a two-house legislature illustrates one of the basic ideals the delegates followed: build checks and balances into the Constitution to achieve stability.

Section 2

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No person shall be a Representative who shall not have attained the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

(Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons. (Changed by Section 2 of the 14th Amendment.)) The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years in such Manner as they shall by Law direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

* With a few notable exceptions such as Benjamin Franklin, the delegates did not trust Americans to vote wisely. As Elbridge Gerry put it, “the People may be imposed upon by corrupt and unworthy men” or become “the dupes of pretended patriots.” Believing this, the delegates “filtered” the voices and votes of the people--in this instance by making the members of the House of Representatives the only national officials directly elected by the people. In fact, some delegates wanted the state legislatures to choose both houses of Congress. Madison, though a firm believer in such filtering, argued that if they were denied any direct vote, “the people would be lost sight of altogether,” and that was going too far. Also, as Gerry observed, it was “necessary to consider what the people would approve.” This practical consideration forced the delegates to accept direct election of the House of Representatives, but it was a concession grudgingly given.

Leaving it up to the states to determine who could vote produced anomalies. In 1787, Virginia, South Carolina and Georgia denied the vote to free blacks. Over time, so many other states enacted such provisions that, by the eve of the Civil War, black Americans could vote on an equal basis with whites only in five New England states. It took a Civil War and several Amendments to have the Constitution say that black Americans had the right to vote. And even today, as debates over voting rights legislation attest, it appears that those rights are not always guaranteed.

By accident, New Jersey’s 1776 constitution was worded in a way that allowed at least some women to claim and exercise the vote. However, other states ignored the New Jersey precedent. And in 1807, the New Jersey Legislature combined sexism and racism by taking the vote away from both women and blacks. That was necessary, said the legislators, to restore “the safety, quiet, good order and dignity of the state.”

When the delegates spoke of “three fifths of all other Persons,” they were sidestepping the words “slave” or “slavery.” Translated into plain English, the Constitution said that slaves would be counted as three-fifths of a white person when it came to apportioning representatives and taxes. No circumlocution could obscure the fact that here and elsewhere, the Constitution sanctioned slavery. That is why many 19th-Century abolitionists denounced the Constitution as “a covenant with death and an agreement with hell.” As practical men, the convention delegates believed they could not directly challenge the institution of slavery and expect the Constitution to be adopted. Thinking back on the convention in 1830, Madison said that to have raised the issue of emancipating the slaves would have been like setting “a spark to a mass of gunpowder.”

Section 3

The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature therof, (Changed by the 17th Amendment.)) for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; (and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. (Changed by the 17th Amendment))

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

* Perhaps the greatest conflict of the convention revolved around the question of how the states, so different in population and wealth, would be represented in the Congress. The larger states wanted proportional representation, giving them power to match their populations; the smaller states, fearful of being tyrannized, insisted on equal votes for each state, regardless of size. Madison summed up the importance of the issue when he said, “if this could be adjusted, all others would be surmountable.” Accordingly, the solution eventually adopted is known as “The Great Compromise.” The large states’ size was to be reflected in the House through proportional representation, but all states would be equal in the other chamber with two senators each.

The system for selecting senators once again reflected the idea of filtering the vote of the people by giving them only an indirect voice in the election of officials. It was assumed that senators would be men of great wealth and standing in their states. Indeed, Gen. C.C. Pinckney of South Carolina said that since the Senate “was meant to represent the wealth of the Country, it ought to be composed of persons of wealth.”

Section 4

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be (on the first Monday in December, (Changed by Section 2 of the 20th Amendment.)) unless they shall by Law appoint a different Day.

* Though some delegates--blind to the country’s future--opposed annual meetings of the legislature because they thought it might not have enough to do, most agreed with Nathaniel Gorham of Massachusetts, who said Congress must meet at least once every year “as a check on the Executive department.” Reinforcing Gorham’s point about the importance of an active Congress, Madison flatly asserted in Federalist 51 : “In republican government the legislative authority, necessarily, predominates.”

Section 5

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

* For the most part, the basic guidelines for the functioning of the national legislature produced little debate at the convention. One matter that did spark heated debate was the provision allowing portions of what is now the Congressional Record to be kept secret. Some delegates insisted the full record had to be made public, but the convention decided--on a close vote--to permit limited secrecy, a provision now used occasionally when the House or Senate meets in closed session to discuss national security secrets or other sensitive matters.

Section 6

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

* Though the protection of members of Congress from arrest may seem odd today, it seemed fundamental to the delegates because such protection was a time-honored part of established British political tradition. And the ban on holding multiple offices reflected Colonial experience: holding two or even many government positions at the same time had been a common and detested practice in Colonial days.

Section 7

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of the House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

* How the national legislature would pass money bills initially caused severe problems because it became embroiled in the battle between the large and small states over representation. The question should have dissolved when the “Great Compromise” on proportional representation was adopted, and it was established that the Senate had to approve any bills the House passed. But it lingered as a point of seemingly needless friction--a reflection of the depth of the differences between the large and small states. As James Wilson of Pennsylvania noted, since both houses had to approve a money bill, it hardly mattered which got to say yes first. The provisions for the veto process offer a vital and classic illustration of the delegates’ commitment to the principle of checks and balances, and a triumph for the ideal of separation of powers; Nathaniel Gorham exaggerated only slightly when he claimed that “All agree that a check on the Legislature is necessary.” Only three delegates, Wilson, Rufus King of Massachusetts and Alexander Hamilton of New York supported giving the executive an absolute veto.

Section 8

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

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.

* Buried in this section are the two short phrases on which much of today’s vast federal government rests--the grant to Congress of power to “regulate Commerce” and to “make all Laws which shall be necessary and proper” for carrying out its specified duties. From these two provisions, Congress and presidents and the federal courts have derived legal authority for everything from airline safety regulations to forbidding racial discrimination in roadside motels--and spawned endless arguments over “narrow” versus “strict construction” of the Constitution.

It is also worth noting that part of this section enumerating congressional powers, like Section 10’s list of restrictions on state power, came fairly directly from the much-maligned Articles of Confederation, but still reflect the delegates’ commitment to giving the national legislature effective power. The crucial change is that under the Articles of Confederation, Congress did not have a sure and independent source of revenue. Moreover, it could only negotiate with the states and could not force them to meet their responsibilities. What the delegates wanted to do, as Rufus King put it, was to create “a government that is to act upon the whole people of the U.S.”

Section 9

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

* This section sets out important protections to civil liberties. Yet the portion of this section that produced the fiercest debate centered on the phrase “such Persons,” another euphemism for slaves. The institution itself could not be touched--almost one-third of the delegates themselves owned slaves, some 1,400 all told--but the slave trade was another matter. Delegates from “free” states expressed fear that the three-fifths rule would encourage such importations. Many delegates also found the slave trade obnoxious, including George Mason of Virginia, the major slave owner in attendance, who referred to it as “this infernal traffic.” Luther Martin, who also was a slave owner, declared that sanctioning the slave trade in the Constitution would “dishonor” the American character.

Delegates from the Deep South, especially, fought back. Charles Pinckney said South Carolina would “Never” accept the Constitution if it prohibited the slave trade. He did, however, suggest that, if left alone, the slaveholding states might abolish the slave trade “by degrees.” Edmund Randolph of Virginia set out the undesirable alternatives: Some states would refuse to support the Constitution if it abolished the trade, but sanctioning it would “revolt the Quakers, the Methodists, and many others in the States having no slaves.”

As usual where slavery was concerned, the delegates reached a compromise and phrased it indirectly.

Section 10

No State shall enter into any Treaty, Alliance, or Confederation: grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, with the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

* As noted above, the majority of powers denied to the states came from lists in the Articles of Confederation. The new prohibitions reflected the delegates’ desire to have basic economic issues determined by the national government, not by the state governments.

Article II

Section 1

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

(The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. (Superseded by the 12th Amendment.))

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of the President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

(In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation, or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. (Modified by the 25th Amendment.))

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--”I do Solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will do to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

* James Wilson had argued in debate that, at least in principle, the people should elect the President directly, but Wilson knew his idea was fanciful; George Mason came closer to stating the general sentiments of the delegates when he asserted that letting the people choose the President would be as “unnatural” as letting a blind man select colors. In the vision of the Founding Fathers, the average American voter was far removed from the selection of the President. The system finally adopted to elect the President produced the extreme example of what Madison dubbed “the policy of refining the popular appointments by successive filtrations.”

The delegates voiced two major objections to letting the people select the President: If the people had the power to elect the President, the people “will be led by a few active and designing men,” said Charles Pinckney. The second basic objection somewhat contradicts the first: It was said that individuals would typically not know all the candidates and would therefore probably vote for a person from their own state. A well-received and tentatively approved proposal for avoiding these supposed evils was to have Congress elect the President--for a seven-year term without possibility of reelection. However, this scheme--essentially a parliamentary system--raised problems. The delegates could not shake the fear that “cabal and corruption” might creep into such a system, and many also suggested allowing for possible reelection would stop a President from performing poorly or negligently. Eventually, those fears prevailed and the parliamentary approach was dropped.

The President and Vice President would, in principle, be selected by electors chosen for that purpose alone. The framers--aware of the new nation’s regional jealousies and working before the dawn of the two-party system--assumed these electors would hardly ever actually select the President; instead, they assumed, most elections would be thrown into the House, which would select the President from among the top five vote-getters. In this scenario, even the electors would do no more than nominate the candidates.

At first, most legislators kept for themselves the power to serve as electors, but most moved fairly quickly toward a more democratic process: In 1800, only two states allowed the voters to select the electors; by 1833 only South Carolina’s Legislature kept the right to choose electors to itself.

Section 2

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

* The parceling out of duties shows how delegates would, in important ways, sacrifice the ideal of separation of powers to support the ideal of checks and balances. It also shows that the smaller states retained great powers because many significant issues were voted on by the Senate, not the House. Some delegates wanted the executive, perhaps aided by an advisory council, to make treaties and appointments. Yet it was known that the American people simply would not accept anything that smacked of monarchy, so it was tentatively decided that the Senate should have these duties. Then various objections were raised.

The compromise solution reflected a system that Nathaniel Gorman said had worked well for over 140 years in Massachusetts. Under it, the executive nominated persons while the legislature got to vote on the nomination. This structure was extended to treaties: The President could recommend, the Senate would have to approve. The Constitution thus balanced the presidential power of appointment and treaty making with the check that the Senate had to concur. On the especially sensitive issue of treaties, the two-thirds requirement gave the three sections of the country--New England, the Mid-Atlantic states and the South--close to veto power over any potential treaty.

Throughout the Convention, delegates often attempted to create advisory councils to assist the President. The final provisions for major appointments and treaty making reflected that inclination: The “Advice and Consent” wording turns the Senate into an advisory council on these matters. That structure reflected traditional practice; from Colonial days onward, upper houses of the legislature were often designated as advisory councils for the governor of the colony or state.

Although the President was designated commander in chief of the armed forces, it was made quite clear at the Convention that the President’s powers and duties did not include deciding on war and peace. Charles Pinckney warned that if the executive controlled decisions on war and peace, it would turn the President into a monarch. Madison assured him and the other delegates that “executive Power does not include the Power of War and Peace.”

Section 3

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

* The office of the President was seen as being in many ways analogous to the office of governor. Wording on the presidency was taken from state constitutions, especially New York’s (1777). This section contains what has historically been the most important comment in the Constitution elucidating the duties contained in the presidential Oath--that the President “shall take Care that the Laws be faithfully executed.”

That statement was quoted in the first of the eleven charges of impeachment leveled at President Andrew Johnson. It was also cited by the House Judiciary Committee in its Bill of Impeachment against President Richard M. Nixon.

Section 4

The President, Vice President and all civil Officers, of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

* In Federalist 51 , Madison argued that “if men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls would be necessary.” That is why checks and balances were needed. “Ambition must be made to counteract ambition,” Madison said. But the delegates believed that some officials would be negligent, some criminal. Creating a system to impeach such offenders reflected the view, well expressed by Edmund Randolph, that “Guilt wherever found ought to be punished.”

Article III

Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

* The delegates firmly believed a national judiciary was needed as a counterweight to the powers of Congress and the President. Some delegates said one court, a Supreme Court, would be sufficient; others wanted an extensive national judicial system. The delegates compromised by having the Constitution say the Congress could but was not required to create tribunals “inferior” to the Supreme Court. Congress acted quickly by passing the Judiciary Act of 1789. The federal district court system it created is, thus, almost as old as the Constitution itself. The appointment of judges for life “during good behavior” and the rules on salaries were both designed to make judges independent of the other branches of government. This independence was necessary so that the courts could perform their role in the system of checks and balances. The possibility of impeachment, in turn, served as a check on judges.

Section 2

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

* The judiciary is the final line of defense against dangerous laws. Yet Section 2 is short. It is also vague on important points. There was reason for that. A full description of the powers of the national judiciary might have alarmed the general public, delegates felt, and impeded ratification. Certainly the judiciary’s most important power--judicial review, whereby laws can be declared unconstitutional--was only partially spelled out. Article III, combined with Article VI, fairly clearly establishes the right of judicial review over state laws. However, the Constitution is silent about the Supreme Court’s power of judicial review over congressional legislation. Nevertheless, the delegates took a clear stand on the issue. Madison offered the classic theoretical statement: “A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.” Rufus King observed that the judges “will no doubt stop the operation” of national laws that “shall appear repugnant to the Constitution.” Luther Martin and others agreed that the judges “will have a negative on the laws.” In 1788, two delegates publicly supported this view. Oliver Ellsworth explained the convention’s view as: If Congress passed a law not authorized under the Constitution, the federal judges “will declare it to be void.” In Federalist 78 , Alexander Hamilton said the judiciary would have the duty and power “to declare all acts contrary to the manifest tenor of the constitution void.”

As it happened, the Supreme Court did not declare a congressional law unconstitutional until it issued the famous Marbury vs. Madison decision in 1803; the justices struck down a law to expand the Supreme Court’s own jurisdiction, ruling that Congress had no power to tell the court to hear cases the Constitution did not authorize. More than half a century elapsed before the High Court exercised that power again, but when it did the monumental nature of the decision illustrated for all time how important the power of judicial review can be: In the Dred Scott case in 1857, the court struck down the Missouri Compromise of 1820, under which slavery was to be confined to the Southern half of the country. With the compromise invalidated, there was suddenly no legal barrier to the spread of slavery--especially into new Western states. In a nation already deeply divided over the issue of slavery, the Supreme Court was praised in the South, vilified in the North. Four years later the Civil War erupted. The Dred Scott decision did not cause the Civil War, but it played an important role in bringing on the war.

Section 3

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

* The provisions on treason were influenced by British political law and tradition. The delegates’ keen knowledge of the British system is shown by the fact that they discussed the exact wording of the English Statute of Treasons , which was passed in 1352. The definition of treason, more tightly drawn than even the British rule, and the wording on trial by jury in Section 2 reveal that the delegates sought to protect some basis for individual rights. That makes their failure to produce a full Bill of Rights all the more puzzling.

Article IV

Section 1

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.

* Despite the language in this clause, the laws or judicial decisions of one state are not necessarily accepted in other states. Perhaps the clearest modern example comes from custody fights over children, in which different states sometimes render conflicting rulings. Such cases can be taken into the federal court system only if they involve a question of federal law; thus many such conflicts, including some of the child custody cases, remain legally unresolved.

Section 2

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

(No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. (Superseded by the 13th Amendment.))

* Section 1 and the first two parts of this section were designed, in part, to keep states from discriminating in favor of their own citizens. Most of the ideas and much of the wording came from the Articles of Confederation.

The provisions about persons “held to Service or Labour” comes from the section on slavery in the Northwest Ordinance of 1783, but the statements drawn from the Ordinance were changed in two important ways. The 1783 wording referred to persons “legally” held to service. Delegates who believed that slavery was morally as well as legally justified wanted “legally” expunged; it was. However, the Ordinance also used the word “slavery,” and the delegates did not let that word creep into the Constitution. Nonetheless, this section, like the three-fifths clause, sanctioned slavery. Only an amendment or amendments to the Constitution could change that.

Section 3

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

* Many of the delegates wanted to ensure that the original states would always retain power. Gouverneur Morris, for example, spoke of the need to create a system that would “secure to the Atlantic States a prevalence in the National Councils.” A proposal to guarantee explicitly that new states would come into the union on equal footing with original states had no chance; it lost by a 9-2 vote.

The question of possibly altering the size of the existing states sparked a sharp debate, in part, because it cut to the heart of a philosophical debate. Tradition said that republics could survive only if they were small. Some delegates who embraced this view anxiously sought ways to limit the size of states. Madison, and others, disagreed. They maintained that a republic covering a vast area could endure. At the convention and elsewhere, especially in his celebrated Federalist 10 , Madison even argued that being large benefited a republic. The greater variety of interests and interest groups found in a large country would, he maintained, check and balance each other. Thus, said Madison, no single faction would be able to take control and dominate the nation.

New states have been created out of territory belonging to others on two occasions. Maine, long a remote district of Massachusetts, was admitted as a new state in 1820. Mountainous western Virginia--where Union sentiment predominated--split off from secessionist Virginia in 1861; following as much as possible the prescribed constitutional process, it became a separate state on June 20, 1863--less than two weeks before the Battle of Gettysburg.

Section 4

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

* Neither the Constitution nor the delegates offered a precise definition of “a Republican Form of Government.” The delegates spoke as if the meaning of the word “republican” were obvious. And, as they used “republican” in discussions, it simply referred to representative government. In this general way, it was contrasted with aristocratic and monarchical forms of government. The delegates firmly believed the American people were unwaveringly committed to having a republican form of government. The idea of creating a monarchy or even an aristocratic government was preposterous.

Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

* The three-fourths rule for amending the Constitution demonstrates the fundamental difference between it and the Articles of Confederation. The Confederation was made up of equal and sovereign nation states. It required unanimous approval to amend the Articles of Confederation. Under the Constitution, sovereignty was vested in the nation at large, not in the individual states. The amending process allowed for changes over time, but the three-fourths rule served as a check on what was called the “vices of democracy.”

The delegates ensured that the amending process could not touch two provisions of the Constitution. First, they protected the compromise agreement on the slave trade. Then the delegates acted to protect small states. The prohibition against any state being deprived of equal suffrage in the Senate was, as Madison said, “dictated by the circulating murmurs of the small States.” The proposal was accepted without debate and without dissent.

Article VI

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

* The delegates readily agreed that the legitimate debts of the existing central government had to be paid. A large portion of the existing debt had been incurred in promissory notes to Revolutionary soldiers. But many economically distressed soldiers, fearful that the notes would never be paid, had sold them at a discount, sometimes to financial speculators. Pierce Butler opposed paying “the Blood-suckers who had speculated on the distress of . . . those who had fought and bled for their country.” These delegates disliked proposed wording that said the public creditors “shall” be paid, fearing the note-holders would benefit. Still, as several delegates noted, public creditors were politically active and could, if crossed, excite great opposition to the Constitution. Hence Gouverneur Morris supported paying the note-holders “because it would create many friends” for the Constitution. The language finally adopted left it up to Congress to determine who would be paid, the war veterans or the note-holders. Ultimately, Madison and Jefferson agreed to support Hamilton’s policy on the national debt--including payment to whoever held the notes--in return for Hamilton’s agreement to locate the new national capital in the South, astride the Potomac River. So in the end, no distinction was made between “those who had fought and bled for their country” and the “Blood-suckers” who had speculated on their distress.

The last two paragraphs of this section were designed to say bluntly, forcefully that the Constitution bound all government officials, state as well as national. As Edmund Randolph noted: “We are erecting a supreme national government.” Even the small state delegations wanted a supremacy clause. Their plan for a government included the statement: “The Laws and treaties of U.S. to be paramount over State Laws in case of opposition to treaties or general Laws.” The language adopted voices a fundamental tenet of American politics: The United States is a government of laws, not of people. Here, the law of the land is the Constitution, not the whims and caprices of individuals.

The ban on religious tests was proposed by Charles Pinckney. This philosophy was shared by the other delegates. Indeed, the only challenge to Pinckney’s motion came from Roger Sherman, who thought the ban “unnecessary” because “the prevailing liberality” of society provided “a sufficient security against such tests.”

Article VII

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

G. Washington----Presid. and deputy from Virginia NEW HAMPSHIRE: John Langdon, Nicholas Gilman MASSACHUSETTS: Nathaniel Gorham, Rufus King CONNECTICUT: William Saml. Johnson, Roger Sherman NEW YORK: Alexander Hamilton NEW JERSEY: Wil: Livingston, David Brearley, Wm. Paterson, Jona: Dayton PENNSYLVANIA: B Franklin, Thomas Mifflin, Robt Morris, Geo. Clymer, Thos. FitzSimons, Jared Ingersoll, James Wilson, Gouv Morris DELAWARE: Geo: Read, Gunning Bedford jun., John Dickinson, Richard Bassett, Jaco: Broom MARYLAND: James McHenry, Dan of St Thos. Jenifer, Danl Carroll VIRGINIA: John Blair, James Madison Jr. NORTH CAROLINA: Wm. Blount, Richard Dobbs Spaight, Hu Williamson SOUTH CAROLINA: J Rutledge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce Butler GEORGIA: William Few, Abraham Baldwin

* Article VII shows the delegates’ skill as practical politicians. Knowing some states might reject the Constitution, the delegates moved well away from requiring unanimous state approval. The new government would begin to function when nine states had ratified the Constitution. If that happened, states that had not ratified would come under pressure to join the new Union.

The Constitution was signed by 39 men with Dickinson’s signature being affixed at his request by fellow-Delaware delegate George Read. Only Alexander Hamilton signed for New York; the state’s other two delegates, John Lansing Jr. and Robert Yates, opposed the Constitution, but they had quit the convention in July. Moreover, all delegates had qualms about what they had collectively created. Benjamin Franklin spoke for many when he said he would sign the Constitution, “with all its faults,” for two basic reasons. First, the nation desperately need a vigorous national government. Second, he doubted another convention could do any better.

The convention wanted to present the image of unanimity, even though some delegates indicated they would not sign. The problem was overcome by saying the states had approved unanimously. That was technically accurate, but misleading. Elbridge Gerry, George Mason and Edmund Randolph had all been active in the deliberations. It was Randolph who had presented the Virginia Plan that started the convention on the road to building a national government. But all three of these men refused to sign.

The other vital issue the delegates faced was how the Constitution would be ratified. Madison and others made it clear the approval had to come from the highest political authority--the people. Of course, virtually all the delegates distrusted the political judgment of the masses. But the Revolution had been fought in no small part to establish the principle that government had to rest on the consent of the governed. The Declaration of Independence had said it was “the Right of the People” to institute, alter, or even abolish governments. So delegates could design a system that filtered the power of the people, but the people had to approve the system in order for it to be legitimate.

The delegates sent the Constitution to the Continental Congress with a formal request that it be forwarded to the states. In each state, the voters would elect the members of a ratifying convention. The conventions would accept or reject the Constitution. These recommendations were followed. The delegates thus remained committed to the rule of law even as they rushed past their instructions and created a totally new system of government.

Some members, especially those who refused to sign, despaired when the Constitution was signed on Sept. 17. Nathaniel Gorham signed, but he had already asked: “Can it be supposed that this vast Country including the Western territory will 150 years hence remain one nation?” Edmund Randolph firmly believed the delegates were wrong to ask the people to accept or reject the Constitution as written. That would, he said, produce “anarchy and convulsions” in the land. Mason, who had already indicated he would not sign, proclaimed the proposed government “would end either in monarchy, or tyrannical aristocracy.”

Bill of Rights

First Ten Amendments, Ratified Effective Dec. 15, 1791

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to th