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It was 11 years after the Declaration of Independence—and four years after American victory in the Revolutionary War—when a small group of delegates convened in Philadelphia to create a new charter for governing the young nation. The result was the longest lasting, most successful, most enviable, and most imitated constitution man has ever known. The United States Constitution has secured an unprecedented degree of human freedom, upholding the rule of law, securing the blessings of liberty, and providing the framework for the people of America to build a great, prosperous, and just nation unlike any other in the world.
George Washington thought that it was "little short of a miracle" that the delegates could agree on the Constitution. Americans had stumbled on this road before. The United States had established an earlier constitution in 1781, the Articles of Confederation. Under the Articles, each state governed itself through elected representatives, and the state representatives in turn elected a weak central government, one so feeble that it was unworkable. This league of states, hastily crafted during wartime, had to be replaced with a real government.
The challenge was devising stable institutional arrangements that would reconcile majority rule and minority rights, that is, reflect the consent of the governed but avoid majority tyranny. The new constitution would need to secure the rights promised in the Declaration of Independence and do so through a republican form of government. The founders responded with a written Constitution that created a strong government of limited powers, with the then-novel institutions of the separation of powers and federalism.
Drafting and Ratifying the Constitution. From May 25 to September 17, 1787, delegates from 12 states met in what is now Independence Hall at Philadelphia to "form a more perfect Union" and establish a government that would "secure the Blessings of Liberty to ourselves and our posterity." The Constitutional Convention was one of the most remarkable bodies ever assembled. Not only were there leaders in the fight for independence, such as Roger Sherman and John Dickinson, and leading thinkers just coming into prominence, such as Gouverneur Morris, James Wilson, and Federalist Papers authors James Madison and Alexander Hamilton, but also legendary figures, such as Benjamin Franklin and George Washington, who was chosen as president of the Convention. Every state was represented, except for Rhode Island, which feared a strong national government and refused to send delegates. Adams declared the three-and-a-half month convention "the greatest single effort of national deliberation that the world has ever seen." Jefferson described it as "an assembly of demigods."
From the Committee of Detail and the Committee of Style Gouverneur Morris produced a final draft that the delegates revised. On the Convention's last day, September 17, 1787, now celebrated as Constitution Day, Benjamin Franklin, the 81-year-old patriarch of the group, praised the Constitution as possibly the best ever written. He observed of the sun painted on the back of George Washington's chair: Now, "I have the happiness to know that it is a rising and not a setting Sun." The 39 delegates who remained through the four months, representing 12 states, signed the Constitution and sent it to the Congress of the Confederation, and the Convention officially adjourned.
On September 28, Congress sent the Constitution to the states, which in turn referred it to ratifying conventions chosen by the people. In accordance with Article VII of the Constitution, the new government was approved with the ratification of the ninth state-New Hampshire on June 21, 1788.
The Constitution. In its seven Articles of some 4500 words, the original Constitution is the "supreme Law of the Land," distributing powers to three branches of government and the states, and denying others. By beginning "We the People," the Preamble makes the Constitution the creation of the American people, not the States.
Article I (Congress): All of the legislative powers "herein granted" by the new Constitution to Congress are meticulously listed, mostly in Article I, Section 8. The Constitution appeared to make only modest changes to the Articles, with new powers to regulate commerce among the states and to apportion "direct" taxes according to population. Congress only has the powers delegated to it in the Constitution. Further, some powers of Congress are divided between the House and the Senate. The latter or upper house approves or disapproves of treaties and presidential appointments, such as federal judges.
Article II (President): In contrast with Article I's list of specific powers, in Article II, "the executive Power [is] vested in a President of the United States of America." The President is the commander in chief of the armed forces and, with the consent of the Senate, appoints judges and other federal officers and makes treaties with other nations. The President plays an important role in legislation through the veto power granted in Article I, Section 7, and is also charged to "take Care that the Laws be faithfully executed." Nevertheless, the implication is that there is an executive power inherent in the office itself. Even before its amendment, the Electoral College selection system favored the election of chief executives with broad, national appeal, not a mere popular majority that could be drawn from one section of the nation.
Article III (Courts): Though the judiciary is an independent branch, its structure in Article III reflects its dependence on the two elected branches. The judicial power was placed in "one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." The judiciary's most important function is to decide "Cases" and "Controversies"— that is, lawsuits. From this need to decide cases against a fundamental law, the Supreme Court would exercise the unmentioned power of judicial review—deciding whether state or federal laws at issue were constitutional. This extraordinary power of life-tenured judges is limited by the more fundamental principle of separated powers, that all three branches are obliged to uphold the Constitution.
Article IV-VII: provided that every state would give its "Full Faith and Credit" to the laws and decisions of every other state, and that all citizens would enjoy the privileges and immunities of citizenship in every state. It also provided for the admission of new states as states, not colonies, on an equal footing with the original 13.
The process for amending the Constitution is set forth in Article V, and Article VI makes the United States Constitution the "supreme Law of the Land" and binds federal and state officials by oath to its support. It also contains a significant expression of religious liberty in its ban on religious tests for public office. Article VII explains how the constitution is to be ratified for it to come into force.
Bill of Rights: The lack of a bill of rights like that found in most state constitutions and in, for example, the Virginia Declaration of Rights became a rallying cry for the Anti-Federalists during the ratification debate. The advocates of the Constitution (led by Madison) agreed to add one in the first session of Congress. Ratified on December 15, 1791, the first ten amendments-the Bill of Rights-include sweeping restrictions on the federal government and its ability to limit certain fundamental rights and procedural matters. The Ninth and 10th Amendments briefly encapsulate the twofold theory of the Constitution: the purpose of the Constitution is to protect rights which stem not from the government but from the people themselves, and the powers of the national government are limited to only those delegated to it by the Constitution on behalf of the people.
Slavery, Women and the Constitution: The monumental exception to the Constitution's securing of fundamental rights, of course, was slavery. Although the words "slave" or "slavery" were kept out of the Constitution (Madison recorded in his notes that the delegates "thought it wrong to admit in the Constitution the idea that there could be property in men"), the framers made three concessions on representation (the notorious and misunderstood 3/5 clause), the slave trade, and return of fugitive slaves, for the sake of unanimity. Over the protests of northerners who wanted slaves to be excluded altogether in determining representation, the 3/5 clause increased the power of the slaveholding States in the House by a 60 percent boost. In the end, it required a Civil War to reconcile the protections of the Constitution with the principles expressed in the Declaration of Independence. Yet, contrary to popular myth, nothing in the Constitution prevents women or blacks from voting or even holding office. State laws produced these restrictions. Blacks could vote in five of the 13 original states, and women could vote for a while in New Jersey. It is noteworthy that the unamendable portions of the Constitution (Art. V) concern the ending of the slave trade and the equal representation of the States in the Senate.
Amendments: Besides the Civil War-era amendments there are the Progressive and New Deal Era amendments on the income tax, the popular election of Senators, prohibition, women suffrage, and presidential terms and elections. Others concern Washington, DC representation in the electoral college, voting, and presidential succession. The most recent Amendment, the 27th, was ratified in 1992, 203 years after James Madison wrote and proposed it as part of the original Bill of Rights.
The Constitution has not only endured but served as a model for the world, a document that reflected candid debate and an application of experience and philosophy to an immediate crisis. More flexible than a code and yet a discipline over whims, it remains a triumph of the American mind and character over the vicissitudes of fortune.
Excerpted from The Heritage Foundation's First Principles Series/Primary Sources available on www.heritage.org
