“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 . . . “
The US Constitution has served as the governing document for the United States for more than two centuries. The original document has been left largely intact; a few parts have expired or became obsolete over the years. The document has been amended twenty-seven times; while some amendments have made significant changes to the Constitution, generally, the changes have been additions or clarifications. The Constitution was written in 1787 by a convention of the states called to amend and reform the governing document of the day, the Articles of Confederation. The convention chose to create a new document instead of trying to revise the old one, thus created the modern US Constitution. The document reflects the concerns of the writers over the proper scope and role of government, while protecting the people as much as possible from the creation of a new despotic government.
In the spring of 1787, the nature of how the United States was to be governed was in question. The government created by the Articles of Confederation had a weak central government in which the powers were focused in Congress. There were no real executive and only limited judiciary powers. The Articles of Confederation was designed to tie together thirteen independent states, but it became obvious to many, even during the Revolutionary War, that it was too weak to hold the new country together effectively.
The Articles of Confederation was created in an effort to create both a sense and a source of unity to prosecute the war effort against Great Britain. In many respects, it was designed as an expedient, formed to deal with a national crisis, where the bulk of the governing power was left to the states. The Articles of Confederation gave limited powers over the states and over taxation to the national government.
Congress’s ability to act was limited by the voting system that had developed in the First Continental Congress, in which each state had a single vote. This system was the logical outgrowth of a view in which each state was seen as independent and equal. In addition, most issues of significance—such as making war, peace, and treaties, raising the military, coining money, borrowing money, or taxing the people—required a three-quarters vote. Amending the Articles of Confederation took a unanimous vote, which gave each individual state a great deal of power.
The Articles of Confederation were created in a crisis to deal with crises, but the limited power it gave to a national government made it difficult for the government to deal with crises it was created to handle. Because of its weak taxing powers, Congress (and by default the Continental Army) was left to the will and willingness of the state governments not only to raise taxes, but also to send the money to Congress. Even before the war was over, leaders such as George Washington, Alexander Hamilton, and James Madison saw a need for a stronger national government. Nonetheless, the system outlined by the Articles of Confederation might have survived for a bit longer had it not been for the 1787 Shays’s Rebellion in Massachusetts, during which the national government was unable to respond effectively.
An agreement developed among most of the leaders of the day that the Articles of Confederation had to be reformed and that the powers of the national government had to be strengthened. A convention of the states was held in Philadelphia to correct the flaws in the Articles of Confederation and to decide what powers the national government would possess.
The Constitution was constructed at a convention of the states that met in Philadelphia from May to September 1787. The convention consisted of fifty-five experienced statesmen from twelve states; Rhode Island chose not to send a delegate. The convention members were some of the leading political players of the day, the most prominent being Washington, who was in favor of a strong central government and who was elected president of the convention. Also in attendance were James Madison (“the father of the Constitution”), leading political thinker George Mason, Benjamin Franklin, Alexander Hamilton, Charles Pinckney, Robert Morris, Elbridge Gerry, and John Dickinson, who had overseen the creation the first draft of the Articles of Confederation. Some important political players chose not to attend, including Patrick Henry of Virginia. Thirteen individuals left, for various reasons, before the convention concluded. Three were present on the last day but refused to sign: Mason, Gerry, and Edmund Randolph. Interestingly, the latter two would go on to serve in the new government.
The convention was influenced by both philosophy and experience. The ideas of both John Locke and Montesquieu had a significant impact on the Founding Fathers. Locke’s ideas of the social contract and the role of government in protecting life, liberty, and property were central to the logic that formed the philosophic base for the writers. Montesquieu’s affection for the mixed governmental model of Britain with its perceived checks and balances became a basis for the idea that each of the three branches of government should be able to limit, to some degree, the other two. The experiences the founders brought with them also significantly influenced the document. The men were used to working within a British-style government and had found it both useful and acceptable until the constitutional crisis began in 1765. They also had experience with experiments in state government, in which they generally discovered that overly powerful legislatures, ones not checked by the executive branch, could be as oppressive as overly powerful executives, leading the states back to republican versions of the governments they had before the Revolution.
The Constitution is a document based on the art of compromise, and that compromise has left room for interpretation and change. Each section was created to balance the concerns of the different parts of the country while forming a government that could govern the whole country without being too powerful. The way in which the Constitution was written has allowed the understanding of the document to evolve over time. The document that was written at the convention of 1787 has been formally modified twenty-seven times by amendments; additionally, it has been changed by time.
The genius of the founders’ work is not necessarily in the individual ideas behind the government but in how those ideas were combined to create the government that exists in twenty-first century. In many respects, the American Revolution was a revolt against the changing way in which Great Britain was interpreting its constitutional relationship with its colonies, especially in North America. Therefore, it is of little surprise that the form of the new American government would be similar to both the British government and British colonial governments. The difference between the British and American systems is the attempt by the Founding Fathers to protect both the states and the citizens from potential abuses.
The new government the founders created was not meant to be democratic; in fact, as a general rule, when the founders referred to democracy, they did so in negative terms, as they did not see any historical examples of democracy working on a large scale. The government they created was meant to be a republic.
The founders sought to create a balanced government. The Revolutionary era created a fear of a strong central government. For many Americans, fighting the British created a fear of a strong executive branch. Thus, the founders wanted to limit the power of the president. On the other hand, many of the Revolutionary leaders, using state governments created during the Revolution as examples, realized that if the executive was too weak, the legislative branch could become too powerful. Thus, checks and balances are found throughout the Constitution; each branch has powers that allow it to limit the powers of the other branches. For example, the president can check Congress through the veto and the courts through control of the executive branch offices. Congress can limit presidential powers through veto overrides and the appropriations process, and it can check the courts by changing laws and creating (and dissolving) federal courts, as well as exerting control over the jurisdiction of those courts. The courts can limit both the president and Congress through judicial review; while judicial review is not explicitly stated in the Constitution, it is a power the founders foresaw and expected the courts to exercise.
The structure of the Constitution is almost as telling as its content. The order and composition of the articles illustrate what the founders believed about the importance of each branch of the government. The preamble, the introduction to the Constitution, explains why the Constitution has been created and what the purpose of the new government is. The rest of the document is primarily a user manual for the US government, laying out the form, structure, and basic powers of the government and rules for the interaction of the states with each other and with the national government.
The preamble is central to the logic of creating the new national government. The purpose of the Constitution is 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.” These goals are the reasons for, and the functions of, the new government whose form and power is described in the rest of the document.
Article 1 deals with Congress and the powers of the government and defines the country as a republic. Section 1 says there will be a Congress. Sections 2 and 3 define the House of Representatives and the Senate. Sections 4–7 discuss how Congress is to work. Section 8 lays out the powers of the government, while sections 9 and 10 discuss limits on the powers of both the national and state governments. For the founders, it made sense to discuss Congress first. In a republican form of government, the most powerful branch would and should be the representative branch.
Section 2 defines the House of Representatives. It was to be the only popularly elected branch in the new federal government. The issue of who could vote was generally left to the states, as long as those who could vote were the same people who could vote for the “most numerous Branch of the State Legislature.” The House of Representatives membership is determined by the population of the state. The number of members is determined by Congress itself. (The present number of 435 was set by Congress in 1911.) The short term of office, two years, was to help keep the members close to the interests of the people they represented. The House of Representatives was also given an important power as the only place tax bills could begin. The bills still have to pass the Senate, but they must originate in the House. This tradition derives from Britain, where all such bills must begin in the House of Commons.
Section 3 defines the upper house, the Senate. Its members would be selected by the state legislatures, and its membership is equal among the states. The founders feared that smaller states would be overwhelmed and outvoted by larger states if both houses were apportioned by population. Therefore, all the parties agreed to have two senators from each state. The Senate was also given specific powers to limit the president’s authority by having final approval over appointments to federal offices and treaties with foreign powers.
The last three sections discuss power. Section 8 turns to the powers of the government. This is a logical place to list the powers, as it is Congress that must pass the laws to use these powers. Seventeen clauses give express powers to Congress, and it has been argued by some, since Thomas Jefferson, that these are the only powers of Congress. However, clause 18, also known as the elastic clause, gives Congress “implied powers.” Thus, the government has the authority to do that which is necessary to carry out its express powers, even if those powers are not listed in the Constitution (a position taken by Hamilton). The issue of the limits of congressional power continues to be debated in the twenty-first century. Sections 9 and 10 outline specific limits on power. Section 9 places limits on the national government, while section 10 places limits on the states. Section 10’s limit on state governments’ role with regard to contracts turned out to be one of the most important limits on state power in the first half of the nineteenth century.
The powers and roles of the American presidency are less defined in the Constitution than are the roles of Congress. The majority of the powers given the president resemble those of the British monarch: control over use of the military, the appointment of federal officials, and the creation of foreign policy. The president needs Senate approval for any appointments of federal officials and military officers and for treaties. The president’s primary duty is to “take Care that the Laws be faithfully executed.”
The judicial is the least defined of the three branches of government. The Constitution only established the Supreme Court and required a chief justice. The numbers of members of the Supreme Court, the number of courts, and size and jurisdiction of the courts were issues left to Congress. Federal judges remained in their positions “during good Behaviour,” to remove them from politics as much as possible, an idea drawn from the effect of the English Act of Settlement (1701). That the appellate power of the courts might lead to the overturning of laws was acknowledged at the convention.
Article 4 lays out the relationship both between the national government and the territories and between the states. Most of its content comes from the Articles of Confederations. The article highlights the relationships of the states and their citizens, requiring that the citizens of one state be treated equally with the citizens of any state they may be visiting or passing through. It also requires that the court actions and legal documents of one state be recognized by another, but Congress can determine what that means. The article also gives Congress jurisdiction over the territories of the United States, up to and including how they can become states.
The article also promises each state a “republican form of government.” This does not mean the state government must replicate the nation’s form on a smaller scale; if a state wants to try a parliamentary form with an elected governor as a figurehead or to create a single-house legislature, like in present-day Nebraska, it can. In addition, the article promises to protect each state from domestic violence if requested, which is a direct response to Shays’s Rebellion.
Article 5 corrects a major problem with the Articles of Confederation by allowing methods for amending the document without requiring the unanimous consent of the states. Article 6 deals with issues of the place of the Constitution in the political structure of the country. It is significant to note the document does not only make the Constitution “the supreme Law of the Land,” but also “the laws of the United States made in Pursuance thereof; and all treaties made, or which shall be made, under the Authority of the United States.” The article also requires that all members of the legislative, executive, and judicial branches of both the state and federal government take an oath to support the Constitution.
Two other important provisions of the article are often overlooked. The article states that no religious test shall be used as a requirement for being a member of the government. The article also made all of the debts contracted by the United States under the Articles of Confederation the legal debts of the United States. This was an important provision for preserving the credit worthiness of the country with the potential European creditors. Article 7, the final article, states that for the Constitution to take effect, only nine state conventions have to approve it.
The Constitution has been changed twenty-seven times; the changes either have focused on the rights of Americans or have made technical corrections. The Bill of Rights, or the first ten amendments to the Constitution, can be separated into three categories: protecting personal rights (Amendments I–III), protecting the rights of those accused of a crime (Amendments IV–VIII), and limiting the scope of government power (Amendments IX and X). The Bill of Rights was originally drafted by Madison and, after changes by the Senate, was passed by both houses of Congress during its first session. All the amendments received approval by three-quarters of the states and were declared part of the Constitution in 1791. The ten amendments were originally passed to limit the federal government. The first eight were meant to prevent abuses that Americans had previously suffered at the hands of the British. The Ninth and Tenth Amendments were meant to acknowledge rights of citizens and to discuss the locations of powers not expressly given the federal government. The amendments only applied to the national government until the passage of the Fourteenth Amendment; since its passage, its due process clause has been used to enforce the Bill of Rights on the states.
Since 1791, each amendment has been designed primarily to perform a specific function. The Eleventh Amendment clarifies the jurisdiction of the federal courts. The three Civil War amendments radically changed the nature of the country. The Thirteenth Amendment ended slavery and, thus, made inoperative references to “other persons,” as well as section 3 of article 4. The Fourteenth Amendment not only made citizens of everyone born within the boundaries of the United States, but also has, through its due process clause, allowed the federal courts to require states to follow the Bill of Rights. The amendment was made necessary by the Dred Scott case, which effectively found blacks were not citizens.
The state power over who can vote has been limited by four amendments since 1870. The Fifteenth Amendment prevents states from using race or color as conditions for voting. The Nineteenth Amendment prevents the use of gender as a condition for voting. The Twenty-Fourth Amendment made unconstitutional the limiting of voting rights for not paying poll taxes, and the Twenty-Sixth Amendment establishes a national minimum voting age of eighteen.
Two amendments deal with the desire to create a more moral nation. The Eighteenth Amendment, along with appropriate acts of Congress, created Prohibition. The experiment was such a failure that the amendment was repealed with the Twenty-First Amendment fourteen years later.
Additionally, a series of important technical amendments have corrected issues that arose over time. The Twelfth Amendment corrected a problem that became obvious after the election of 1800. From 1789 to 1800, electors in the Electoral College each cast two votes for president; with the creation of political parties, however, this system was doomed to failure. The current system in which members of the Electoral College cast one vote for president and one for vice president was created after the election of 1800, when Jefferson and Aaron Burr (both members of the same party) tied.
The Sixteenth Amendment allowed the government to tax income after the Supreme Court found the Civil War income tax to be unconstitutional. The Seventeenth Amendment changed the method of selecting senators, by moving the choice from the state legislatures to the people of the state. The Twentieth Amendment shortened the transition period after presidential elections by moving the presidential inauguration date from March 4 to January 20. It also changed the first meeting of a new Congress to January 3.
The Twenty-Second Amendment was added after Franklin D. Roosevelt won four consecutive presidential elections. The amendment limited to eight the number of years a person could serve as president if elected to the job and ten if he or she had been vice president and took over the job because the president died or left office in the middle of the term. A vice president finishing a term because of a president’s death had not been made explicit in the Constitution but had been the tradition of the nation since 1841, when John Tyler succeeded William Henry Harrison upon the latter’s death.
After the assassination of President John F. Kennedy in 1963, some wondered what would happen if a living president became incapacitated. The Twenty-Fifth Amendment was added to the Constitution to address this issue, presenting a system for the transfer of power to the vice president. The amendment also codified the role of the vice president and outlined a process for replacing the vice president when the position became vacant. The last amendment added was the Twenty-Seventh, which, as a quirk of history, was one of the original twelve sent by Congress to the states in 1789 and prevents members of Congress from receiving the benefits of any congressional pay raise until after the next general election.
It is worth noting that there are no geographical limits in the Constitution. It does not say it applies to only people within the boundaries of the United States. The document was created as a description of the powers and limits on the US federal government no matter where it acts.
Both compromise and ambiguity about the powers and relationships of the branches of government are at the heart of the Constitution and, ultimately, provide the means of its survival as a governing document. The Constitution was designed to create a stronger federal government than its predecessor under the Articles of Confederation. The desire was to have a government with the strength and wherewithal to act for the benefit of the whole nation. Additionally, it was created to prevent oppression, which was done through compromise, allowing the document to be adapted to new situations and circumstances while remaining basically intact.
The lack of clarity on relationships between the branches of government has given plenty of room for compromise and has allowed the Constitution to adapt to circumstances. For example, under Washington, the issue was raised of whether the Senate should play a role in firing officials in the executive branch; the ultimate answer was no. Lincoln expanded the power of president during the Civil War, establishing the basis for modern war powers. The extent of the president’s powers is an issue still under discussion.
The government’s role in the economy received only limited attention in the Constitution; however, the government has taken on an economic role the founders could not have foreseen, especially since the presidency of Roosevelt. Roosevelt’s New Deal expanded the idea of “the general Welfare” to include what has become known as the social safety net. Similarly, a small standing military, the original intention of the founders, has been replaced with a relatively large one.
From its inception, the Constitution has been a document subject to interpretation, more an outline of government than a series of hard and fast rules. It has formal specifics but functional generalities. In the end, it is the generalities and ambiguities that have given the document the flexibly to survive and adapt.
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