Transcript Writing the Constitution

Who wrote the U.S.
Constitution?
“The earth belongs in usufruct* to the living,
the dead have neither powers nor rights over
it.”
A. I agree with this statement.
B. I disagree with this statement.
*the legal right to use or enjoy something.
The Problem of the Future
Quod leges posteriores contrarias abrogant (i.e.,
in a conflict between legislative acts of equal
juridical status, the most recent enactment takes
precedence.”
The American Solution: A Dualist
Constitution
Decision by We the People = Higher
lawmaking
Decision by the Government =
Ordinary lawmaking
Higher lawmaking Trumps Ordinary
lawmaking
“The series of political movements
that have, from the Founding
onward, tried to mobilize their fellow
Americans to participate in the kind
of engaged citizenship that, when
successful deserves to carry the
special authority of We the People of
the United States.”
– Bruce Ackerman
Constitutional Politics versus Constitutional Law
How did the text,
including its amendments,
come to be enacted?
What did (or does) the
enacted text, including its
amendments, mean?
The Constitution and American Life
“I hope that you have re-read the Constitution
of the United States in these past few weeks.
Like the Bible, it ought to be read again and
again.”
Playing Historical Detective: Approximately
when was this statement made? By whom?
Signers' Hall, National Constitutional Center
Visiting the Past: Would you sign the proposed
Constitution of 1787?
The Philadelphia Convention
12 States sent 55 delegates—
Rhode Island did not participate
Convention was conducted in
secrecy
The delegates did not closely
follow their instructions
Instead of revising the Articles of
Confederation, they proposed a
new Constitution
The Great Debate
From May 29 to July 15, 1787
Debating the Virginia and New Jersey Plans
July 16
“The Great Compromise”
July 17 to September 17, 1787
Committee of Details
Edmund Randolph Presents the
“Virginia Plan” on May 29
He first praises the
authors of the Articles of
Confederation, many of
whom were in the room,
for “having done all that
patriots could do, in the
then infancy of the
science, of constitutions
and of confederacies.”
Edmund Randolph, 1753-1813
But. . .
“inefficiency of requisitions was unknown—no
commercial discord had arisen among any
states—no rebellion had appeared as in
Massachusetts—foreign debts had not become
urgent—the havoc of paper money had not
been foreseen—treatises had not been
violated—and perhaps nothing better could be
obtained from the jealousy of the states with
regard for their sovereignty.”
Voting on the Critical Third
Resolution, May 30
“that a national
government ought to be
established consisting of a
supreme Legislative,
Executive and Judiciary.”
MA, PA, DE, VA, NC, SC all
vote Yes.
CT is the sole no vote.
NY is divided. Hamilton
votes Yes; Robert Yates
votes No.
The Significance of the Vote
“And thus on the third day of full business, the Convention
rejected the principle of federalism on which the American
republic had been founded and endorsed in its place the notion
of a supreme national government. In the geographic expanse
over which it would operate and in its power over the individual
states, this proposed government was closer to that of the
imperial British government against which the colonists had
rebelled then the confederation of sovereign states they had
created in the aftermath of the Revolution.”
Richard Beeman, Plain, Honest Men, 102.
Representation is Power
Population
Wealth
For purposes of representation, should slaves be
considered people or property?
Should representatives be paid, and by whom?
The Bi-Sectional Constitution
“[The] last five years have brought us serial
accounts of the Constitution’s original meaning: a
pact between sections that created a
slaveholder’s union and then for the better part
of a century protected an expansive slave
economy from the possibility of government
intrusion. The latest of these histories, [George]
Van Cleve’s Slaveholders’ Union is the most
comprehensive and as such the most convincing.”
Christopher Tomlins (2011)
Structure and Compromises
Federalism (enumerated powers)
Representation (House and Senate)
Slavery (3/5 clause; slave trade; fugitive slave
clause)
Separation of Powers (Legislative, Executive, and
Judicial)
Taking a Break
“While Washington was
fishing, Madison was
worrying, and [Joseph]
Gilman was gossiping, the
five members of the
Committee of Detail were
hard at work drafting a
provisional constitution
(Beeman, Plain, Honest
Men, 263).
The Committee of Detail, July 27 to
August 5, 1787
•
•
•
•
•
Oliver Ellsworth (CT)
Nathaniel Gorham (MA)
James Wilson (PA)
Edmund Randolph (VA)
John Rutledge (SC)
Chair
Edmund Jennings Randolph
(August 10, 1753 September 12,
1813).
Edmund Randolph’s Principles and
Constitutional Interpretation
1. to insert essential principle only, lest the
operations of government should be clogged by
rendering those provisions permanent and
unalterable, which ought to be accommodated to
times and events, and
2. to use simple and precise language, and general
propositions, according to the example of the
constitutions of the several states. (For the
construction of a constitution of necessarily [sic]
differs from that of law).
Completing the Constitution
Edmund Randolph completes a rough draft
James Wilson and John Rutledge revise it.
On August 3, 1787, the Committee of Detail
turned their report over to John Dunlap and
David Claypoole, the publishers of the
Pennsylvania packet, to print copies for each of
the delegate by Monday, August 6.
Secrecy and Honor
“Dunlap and Claypoole carried out this task with
remarkable discretion; the pages of the Packet during
the period immediately before and after the printing of
the report are utterly devoid of any news relating to the
committee’s deliberations. In our own age, the most
likely source of any leak about the contents of a
document as important as the Report of the Committee
of Detail would be one (or more!) of the delegates
themselves, but the men gathered in the Assembly
Room operated by a different code.”
Richard Beeman, Plain, Honest Men, 276.
Writing is Re-Writing
Randolph’s Preamble
The Final Version
We the people of the States of New
Hampshire, Massachusetts, Rhode
Island and Providence Plantations,
Connecticut, New-York, New-Jersey,
Pennsylvania, Delaware, Maryland,
Virginia, North-Carolina, SouthCarolina, and Georgia, do ordain,
declare and establishing the
following Constitution for the
Government of Ourselves and our
Posterity.
We the people of the United States,
in order to form a more perfect
union, establish justice, insure
domestic tranquility, provide for the
common defense, 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.
Supremacy Clause
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,
anything in the Constitution or laws of any State
to the contrary notwithstanding.
– Article VI
An Omission
No Bill of Rights
“[T]he most absurd thing
to mankind that ever the
world saw.”
– Patrick Henry
The Concept of Legitimate Change
“that whenever any Form of
Government become
destructive of these Ends, it is
the Right of the People to alter
or to abolish it, and to institute
new Government, laying its
foundations on such Principles,
and organizing its Powers in
such Form, as to them shall
seem most likely to effect their
Safety and Happiness.”
– Declaration of
Independence, 1776
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.
– Article V, U.S. Constitution of 1787
What Won’t Change In the Short Term or
the Long Run
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.
– Article V
Benjamin Franklin (1706-1790)
"I have often ... in the course of the session ... looked at that sun behind
the President without being able to tell whether it was rising or setting.
But now at length I have the happiness to know it is a rising and not a
setting sun."
The Significance of Ratification
“Whatever veneration might be entertained for the body of
men who formed our Constitution, the sense of that body
could never be regarded as the oracular guide in
expounding the Constitution. As the instrument came from
them it was nothing more than the draft of a plan, nothing
but a dead letter, until life and validity were breathed into it
by the voice of the people, speaking through the several
State Conventions. If we were to look, therefore, for the
meaning of the instrument beyond the face of the
instrument, we must look for it, not in the General
Convention, which proposed, but in the State Conventions,
which accepted and ratified the Constitution.”
Congressman James Madison, 1796
Let the People Decide
The ratification of the conventions of nine
states, shall be sufficient for the establishment
of this Constitution between the states so
ratifying the same.
– Article VII
Yes or No vote only
Faith in the Future?
“It is in vain to say that the defects in this new
Constitution may be remedied by the Legislature
created by it. The remedy, as it may, so it may not be
applied--And if it should a subsequent Assembly may
repeal the Acts of its predecessor for the parliamentary
doctrine is "quod leges posteriores priores contrarias
abrogant" 4 Inst. 43. Surely this is not a ground upon
which a wise and good man would choose to rest the
dearest rights of human nature.”
Richard Henry Lee to Samuel Adams, October 5,
1787.
Signers' Hall, National Constitutional Center
Would you sign the proposed Constitution of
1787?
Further Reading
• Akhil Reed Amar, America’s Constitution: A Biography (Random House,
2005). Amar analyzes the text of the U.S. Constitution, including paying
close attention to its ratification and later amendment.
• Jack Rakove, Original Meanings: Politics and Ideas in the Making of the
Constitution (Vintage Books, 1997). Rakove analyzes the political and
ideological contexts for the writing and ratification of the U.S.
Constitution.
• David Waldstreicher, Slavery’s Constitution: From Revolution to
Ratification (Hill and Wang, 2009). Waldstreicher analyzes the
relationship of slavery and the U.S. Constitution.
• Gordon S. Wood, The Creation of the American Republic, 1776-1787
reissued ed. (The University of North Carolina Press, 1993). Wood
provides a comprehensive analysis of constitution-making in the United
States during the revolutionary era.
• Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 17891815 (Oxford University Press, 2009). Wood provides a comprehensive
political history of the early republic.
Useful Websites
• http://avalon.law.yale.edu/. Yale University
Law Library has mounted primary sources on
law, history, and government, including
essential documents from the eighteenth
century.
• http://www.loc.gov/rr/program/bib/ourdocs/
Constitution.html. The Library of Congress
provides essential information and links for
teachers and students, including ageappropriate bibliographies.