Little Talks #1311, April 25, 1982
Last week we called attention to some little known facts
about the Declaration of Independence. Today we turn to the Constitution
of the U.S.
In l78l~ before the Revolution was over~ the Continental Congress
adopted what were called Articles of Confederation. They gave
no supreme power to a central government. but they did provide for a
loose kind of concentration among the colonies and they did use the
word “union”. The articles were indeed given the title “Articles
of Confederation and Perpetual Union.” They provided that each state
should have one vote on all issues presented to the Continental Congress.
Expenses of the central government were to be paid by contributions
from each state on the basis of its own tax vaulation~ not on
the number of inhabitants. Important was the ceding by the states to the
central government of the management of coastal waters and certain lands
not then within anyone state. The name of the central legislative
body was then changed from “Continental Congress” to “The United States
in Congress Assembled.”
Between 1781 and 1787 several attempts to amend the Articles of
Confederation had little effect. Alexander Hamilton led a group that
insisted on a convention to examine the entire question of the
relation of the 13 states to a central government. They succeeded in
getting consent to a constitutional convention which assembled in Philadelphia
on May 25. 1787. The delegates ranged in age from Jonathan
Dayton of ~ew Jersey. 26 years old, to Benjamin Franklin. aged 8l.
Highly respected ,Jere Franklin and ‘i.Jashington. but the active leaders proved
to be James Madison and George ~Iason. both from Virginia.
The major issue was whether to amend the existing Articles or
Confederation. or set up a wholly new foro of government. After more
than a week of heated debate, it was decided to scrap the old articles
and begin anew. As a start they agreed to consider a plan presented by
Edward Randolph known as the Virginia Plan of Cnion.
The plan called for a bicameral government, with both houses
having representation from the states a~cording to population. The lower house
would be elected directly by the people, the upper house by the state
legislatures. The president would be elected by Congress. A judiciary would
consist of a supreme court and inferior courts. A council composed of
the President and members of the Supreme Court would have veto power over
Objections were quickly voiced to several parts of “the Virginia
Plan. Some of the delegates wanted to retain the existing policy of
having each state entitled to a single vote. Others preferred a single
house to a bicameral legislature. Many were opposed to a council with
veto power, feeling that such power should be given to the President alone.
As debate went on, it became clear that those who preferred a
strong central government were going to prevail over those who wanted almost
all power left to the separate states, though the states rights group
proved strong enough to win many concessions before the final draft was
approved. That sharp division of opinion led to the formation of the
nation’s first political parties, the Federalists led by John Adams and
Alexander Hamilton, and the Democratic-Republicans led by Jefferson and
Madison. As the Democratic Party, the latter would later come under the
leadership of Andrew Jackson.
It was Robert Sherman of Connecticut who proposed the plan of
representation that was eventually adopted, whereby the lower house was
elected from the states in proportion to population, while the states
rights principle was protected by having each state, regardless of
population, have two members in the upper house, the Senate.
In counting population, a problem arose regarding Negroes. The
slaves had no rights as citizens and were regarded as property, like
land or buildings. Should they be counted as people? A compromise
resulted in counting five Negroes as equal to three whites, so that to
its white population each state could add three-fifths of its slaves
to reach the total on which representation in the House of Representatives
would be based.
It took two weeks to resolve other matters. Representatives
were to have two-year terms, senators six years. The President’s term
would be four years. Only Congress, not anyone state, could regulate
interstate and foreign commerce. No state could set up barriers of
trade against any other state. Only the central government could declare
and wage war, and to it alone was given the power to coin money.
When all points had been decided, Governor Morris of Pennsylvania
was appointed to make the final draft of the new constitution. On
September 12, 1787, the Congress began to take up Morris’ draft clause
by clause. After five days of intense debate the matter of adoption
of the Constitution came to a vote on Septe~ber 17, 1787. Of the 45
delegates, 42 voted in favor. The three dissenters were Randolph and
Mason of Virginia and Gerry of Massachusetts.
Then the Constitution had to be ratified separately by the states.
The first nine to ratify were in order, Delaware, Pennsylvania, Georgia,
Connecticut, Massachusetts, Maryland, South Carolina, New Hampshire and
New Jersey. By the end of June 1788, New,York, Virginia and North Carolina
had approved. The only state actually to vote against the Constitution
was Rhode Island, and it did not change its position until 1790.
Congress proceeded at once to set up the new government. The
national capital was fixed as New York City and February 9, 1789 was set
as the date for electors from the 13 states to choose a President and
a Vice President. They made unanimous choice of George Washington as
President and John Adams as Vice President. The first Congress to
convene under the constitution met on March 4, 1789 and Washington was
inaugurated on April 30. He delivered the nation’s first inaugural
address in the new Federal Hall in New York City.
In September 1789, James Madison presented ten amendments based
on the Virginia Bill of Rights. They were speedily adopted and
became the Constitution’s first ten amendments, what we now call our
national Bill of Rights.
Besides setting up the new government itself and providing
for election of its personnel, what did the Constitution actually do?
First, it set up three distinct branches to be checks on each
other; legislative, executive and judicial. That third branch became
very important. Its purpose was to see that the Constitution was
never violated by state laws or by Congress itself. Congress could
pass a law, the President could sign it, but the Supreme Court could
overturn it if the Court decided it violated the Constitution.
Certain powers were taken from the states and conferred on the
federal government. Only the Congress could establish post offices.
Besides having exclusive power to make war, it could, in emergency,
call the state militias into federal service.
The Constitution contained a number of important negatives.
The habeas corpus act could not be repealed except in case of rebellion
or invasion. No tax or duty could be levied on goods transported
from one state to another. No port in any state could be closed to
vessels from another state. No title of nobility could be conferred
on any Amer, ican citizen. No person holding office could accept from
any king, prince or foreign potentate, a gift of any kind without
consent of Congress. No state could enter into any agreement with a
Little was specifically said in the Constitution about the rights
of states, except to assure equal representation in the Senate regardless
of the state’s size. However, a broad, general provision did protect
the states. It said: “The U.S. 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 state legislature or its
chief executive. shall protect the state against domestic violence.”
Because there has recently been much controversy about extending
the date for ratification of ERA, the Equal Rights Amendment, it may
be ~,.rell to see t .. hat the Constitution says .:lbout the process of amendmente
The wording is: “Con~ress. whenever the two-thirds of both
hOUSeS shall det!!’l it necessary. shall prepare amendments to the Constit~:
ion. or 0n applic.:ltion of the legisl.:lturcs of two-thirds of the
states, shall call a convention for the purpose of preparing amendments,
which in either case shall become valid when ratified by the legislatures
of three-fourths of the states.”
Thus, the Constitution does not say how long a time must be allowed
for three-fourths of the states to ratify. That matter was left for
Congress to decide on each specific amendment or group of amendments.
In recent years it is not the original Constitution, but its
first ten amendments that have excited most controversy. Let us see
what some of those controversial amendments actually said.
The much debated First Amendment was worded: “Congress shall
make no law respecting the establishment of religion or prohibiting
the free exercise thereof, or abridge freedom of speech or of the press,
or the right of people peaceably to assemble and petition the government
for redress of grievances.”
The first clause of that amendment brings up the age-old issue of
the relation of church and state. In recent years the Supreme Court
has given it a strict interpretation, barring religious exercise from the
public schools. It is questioned whether the framers of the amendment
intended such an interpretation, but that rather they meant to protect
the nation from dominance by anyone sect, as had happened under the
Congregationalists in Massachusetts and under the Church of England in
Virginia.In 1982 that basic issue is by no means yet settled.
The tenth amendment has also aroused controversy. It says:
“Powers not delegated to the states by the Constitution. or prohibited
by it to the states, shall be reserved to the states themselves or to
the people.” What is meant by “the people?” Is it the people of a
state or the people of the entire nation?
All of these uncertainties show the wisdom of the founding
fathers in settin~ up a Supre~e Court. At any particular point in time.
every clause in the Constitution means what the existing Supreme Court
says it means. But a subsequent Supreme Court may, in a later time.
completely reverse a decision. That happened in the Dred Scot case more
than l~5 years ago. The Court declared a ~e~ro to be property. not a
person; but ten years later that decision was reversed.
Sincere, devout people who today do not like the Court’s
decision on prayer in the schools, must’respect and obey that decision,
but they have every right to urge its reversal by some later Supreme
Court or even a Constitutional amendment that would reverse it.