In 1787, the Confederation Congress called for a Constitutional Convention with the goal of replacing the Articles of Confederation with a form of government that had the central power necessary to lead the states and the territories. This had to be a document very different from the Iroquois Great Law of Peace, from the Union of Utrecht and from the Articles of Confederation themselves. It had to provide for a centralized structure that would exercise legislative and executive power on behalf of all the states and territories. Were there existing historical precedents for a written document to set up a social contract of government? Mystère.
In antiquity, there was “The Athenian Constitution”; but this text, credited to Aristotle and his students at the Lyceum, is not a founding document; rather it is an after-the-fact compilation of the workings of the Athenian political system. In the Middle Ages there was the Magna Carta of 1215 with its legal protections such as trial by jury and its limitations on the power of the king. Though the Magna Carta itself was quickly annulled by a bull of the crusade-loving Pope Innocent III as “illegal, unjust, harmful to royal rights and shameful to the English people,” it served as a template for insulating the citizen from the power of the state.
There is a book entitled “The English Constitution” but this was published by Walter Bagehot in the latter part of the 19th century and, like “The Athenian Constitution,” it is an account of existing practices and procedures rather than any kind of founding document. This is the book that the 13 year old Elizabeth is studying when taking history lessons with the provost of Eton in the TV series “The Crown.”
For an actual example of a nation’s constitution that pre-dates 1789, one has to go back to 1600, the year that the Constitution of San Marino was adopted. However, there is no evidence that the founding fathers knew anything of this at all. Since that time, this document has been the law of this land-locked micro-state and it has weathered many storms; most recently, during the Cold War, it gave San Marino its 15 minutes of fame when the citizens elected a government of Communist Party members and then peacefully voted them out of office twelve years later. For an image of St. Martinus, stonemason and founding father of this, the world’s smallest republic, click HERE .
The English Bill of Rights of 1689, an Act of Parliament, is a constitutional document in that it transformed an absolute monarchy into a constitutional monarchy. This is the key role of a constitution – it tempers or replaces traditional monarchy based on the Divine Right of Kings with an explicit social contract. This sharing of power between the monarch and the parliament made England the first Constitutional Monarchy – in simple terms, the division of roles made the parliament the legislature and made the king the executive. To get a sense of how radical this development was, it took place only a few years after Louis XIV of France reportedly exclaimed “L’Etat, c’est moi.”
With independence brewing, the Continental Congress in May 1776 directed the colonies to draw up constitutions for their own governance. The immediate precursors to the U.S. Constitution then were the state constitutions of 1776, 1777 and 1780, born of the break with Great Britain.
An important influence on this generation of constitutional documents was the work of the French Enlightenment philosopher Montesquieu. In his Spirit of the Laws (1748) Montesquieu analyzed forms of government and how different forms matched with different kinds of nations – small nations best being republics, medium sized nations best served by a constitutional monarchy and very large ones best being empires. His analysis broke government down into executive, legislative and (to a lesser extent) judicial powers and he argued that, to avoid tyranny, these should be separate and independent of each other so that the power of any one of these would not exceed the combined power of the other two.
In 1776, the state of Connecticut did not adopt a new constitution but continued with its (sometimes updated) Royal Charter of 1662. In the matter of religious freedom, in Connecticut, the Congregational Church was effectively the established state religion until the Constitution of 1818. Elsewhere, the antidisestablishmentarians generally lost out. For example, in the case of New York, Georgia, Rhode Island, Pennsylvania and Massachusetts, the state constitution guaranteed freedom of religion; in New Hampshire, the Constitution of 1776 was silent on the subject, but “freedom of conscience” was guaranteed in the expanded version of 1784. In Delaware’s case, it prohibited the installation of an established religion; in Virginia’s case, it took the Virginia Statute for Religious Freedom, written by Thomas Jefferson in 1786, to stave off the threat of an established church. On the other hand, the Maryland Constitution only guaranteed freedom of religion to “persons professing the Christian religion” (which was the same as in Maryland’s famous Toleration Act of 1649, the first step in the right direction in the colonies). In its 1776 document, Anglicanism is the established religion in South Carolina – this was undone in the 1778 revision. In the North Carolina Constitution, Article 32 affirms “That no person who shall deny the being of God, or the truth of the Protestant religion … shall be capable of holding any office … within this State”; New Jersey’s Constitution had a similar clause. It seems that from a legal point of view, a state still has the authority to have its own established or favored religion and attempts to move in this direction are still being made in North Carolina and elsewhere – the First Amendment explicitly only prohibits Congress from setting up an established religion for the country as a whole.
The challenges confronting the Constitutional Convention in Philadelphia in 1787 were many – to craft a system with a sufficiently strong central authority but not one that could morph into a dictatorship or mob rule, to preserve federalism and states’ rights (in particular, for the defense of the peculiar institution of slavery), to preserve popular sovereignty through a system of elections, etc. Who, then, rose to the occasion and provided the intellectual and political drive to get this done? Mystère.
Thomas Jefferson was the ambassador to France, John Adams was the ambassador to Great Britain and neither attended the Convention. Benjamin Franklin was one of the few who took a stand for the abolition of slavery but to no avail; Alexander Hamilton had but a bit part and his main (virtually monarchist) initiative was roundly defeated. George Washington took part only at James Madison’s urging (but did serve as president of the Convention). But it is Madison who is known as the Father of the Constitution.
Madison and the others were keen readers of the Roman historian Publius Cornelius Tacitus who pitilessly described the transformation of the Roman Senatorial class from lawmakers into sniveling courtiers with the transformation of the Roman Republic into the Roman Empire; Montesquieu also wrote about the end of the Roman Republic. On the other hand, the rumblings leading up to the French Revolution could be heard and the threat of mob rule was not unrealistic. So the fear of creating a tyrannical regime was very much with them.
Madison’s plan for a strong government that would not turn autocratic was, like some of the state constitutions, based on the application of ideas of Montesquieu. In fact, in Federalist No. 47, Madison (using the Federalist pseudonym Publius) developed Montesquieu’s analysis of the separation of powers further and enunciated the principle of “checks and balances.”
For his part, Hamilton pushed for a very strong central government modeled on the English system with his British Plan; however, this plan was not adopted, nor were the plans for structuring the government proposed by Virginia and by New Jersey. Instead, a balance between large and small states was achieved by means of the Connecticut Compromise: there would be a bicameral legislature with an upper house, the Senate, having two senators from each state; there would be a lower house, the House of Representatives, with each state having a number of representatives proportional to its population. While the senators would be appointed by the state legislatures, the representatives would be chosen by popular vote (restricted to men of property, of course).
This bicameral setup, with its upper house, was designed to reduce the threat of mob rule. However, it also brought up the problem of computing each state’s population for the purpose of determining representation in the House of Representatives. The resulting Three-Fifths Compromise stipulated that 3/5ths of the slave population in a state would count toward the state’s total population for this computation. This compromise created the need for an electoral college to elect the president, since enslaved African Americans would not each have three-fifths of a vote! So the system of electors was introduced and each state would have one elector for each member of Congress.
Far from abolishing slavery, Article 1, Section 9, Clause 1 of the Constitution prohibited Congress from making any law that would interfere with the international slave trade until 1808 at the earliest. However, Jefferson had stood for ending this traffic since the 1770’s and, in his second term in 1807, the Act Prohibiting the Importation of Slaves was passed and the ban was initiated the following year. However, the ban was often violated and some importation of slaves continued into the Civil War. In 1807, the British set up a similar ban on the slave trade in the Empire and the British Navy actively enforced it against ships of all nations off the coast of West Africa and elsewhere, technically classifying slave traders as pirates; this was an important impediment to the importation of slaves into the United States.
For Hamilton, Madison and others, the Electoral College would serve as an additional buffer between the masses and the government: one way this was to be achieved was by means of the “faithless elector,” one who does not vote for the candidate he pledged to – this stratagem would overturn a mass vote for a potential despot. This was considered a feature and not a bug; this feature is still in force and some pledged electors do employ it – in the 2016 election, seven electors voted against their pledged candidates, two against Trump and five against Clinton.
The Constitution left it to the states to determine who is eligible to vote. With some exceptions here and there at different times, the result was that only white males who owned property were eligible to vote. This belief in the “divine right of the propertied” has its roots in the work of John Locke; it also can be traced back to a utopian composition published in 1656 by James Harrington; in The Commonwealth of Oceana he describes an egalitarian society with an ideal constitution where there is a limit on how much property a family can own and rules for distributing property; there is a senate and there are elections and term limits. Harrington promulgated the idea of a written constitution arguing that a well-designed, rational document would curtail dangerous conflicts of interest. This kind of interest in political systems was dangerous back then; Oliver Cromwell blocked publication of Harrington’s work until it was dedicated to the Lord Protector himself; with the Stuart Restoration, Harrington was jailed in the Tower of London and died soon after as a result of mistreatment. For a portrait, click HERE .
In any case, it wasn’t until 1856 that even universal suffrage for white males became established in the U.S. For the enfranchisement of rest of the population, it took the Civil War and constant militancy up to and during WWI. A uniform election day was not fixed until 1845 and there are no real federal guidelines for election standards. This issue is still very much with us, as demonstrated by a wave of voter suppression laws in the states newly released from the strictures of the Voting Rights Act by the Roberts’ Court with the 2013 decision in Shelby County v. Holder.
Finally, a four page document entitled Constitution of the United States of America was submitted to the states in September 1787 for ratification. This process required nine of the thirteen states; the first to ratify it was Delaware and the ninth was New Hampshire. There was no Bill of Rights and no provision for judicial review of legislation. Political parties were not expected to play a significant role and the provisions for the election of president and vice-president were so clumsy that they exacerbated the electoral crisis of 1800 which ultimately led to the duel between Aaron Burr and Alexander Hamilton.
The Confederation Congress declared the Constitution ratified in September 1788 and the first presidential election was held. Congress was seated and George Washington became President in the spring of 1789.
In American life, the Constitution has truly become unquestionable, sacred scripture and the word unconstitutional has the force of a curse. As a result, to a large extent, Americans are frozen in place and are not able to be forward looking in dealing with the myriad new kinds of problems, issues and opportunities that contemporary life creates.
For example, the Constitution provides for an Amendment process that requires ratification by 3/4ths of the states. When there were 13 states huddled together on the Eastern Seaboard, this worked fine and the first 10 amendments, The Bill of Rights, were passed quickly after the Constitution was adopted. However, today this process is most cumbersome. For example, any change in the Electoral College system would require an amendment to the Constitution; but any 13 states could block an attempt at change and the 13 smallest states, which have barely 4% of the population, would not find it in their interest to make any such change, alas. Another victim is term limits for members of Congress. It is in states’ interest to have senators and representatives with seniority so they can accede to powerful committee chairmanships etc.; this is the old Dixiecrat strategy that kept Strom Thurmond in the Senate until he was over 100 years old – but then the root of the word senator is the Latin senex which means “old man.” The Constitution does provide for a second way for it to be amended: 34 state legislatures would have to pass applications for a constitutional convention to deal with, say, term limits; this method has never been used successfully, but a group “U.S. Term Limits” is trying just that.
The idea of judicial review of laws passed by Congress did come up at the Convention. Madison first wanted there to be a set of judges to assist the president in deciding to veto a bill or not. In the end, nothing was set down clearly in the Constitution and the practice of having courts review constitutionality came about by a kind of judicial fiat when John Marshall’s Supreme Court ruled a section of an act of Congress to be unconstitutional. Today, any law passed by Congress and signed by the President has to go through an interminable process of review in the courts and in the end, the law means only what the courts say it means. Contrast this with the U.K. where the meaning of a law is what Parliament says it is. As a result with the Supreme Court politicized the way it is, law is actually made today by the Court and the Congress just licks its wounds. The most critical decisions are thus made by 5 unelected career lawyers. Already in 1921, seeing what was happening in the U.S., the French jurist Edouard Lambert coined the phrase “gouvernement des juges” for the way judges privileged their personal slant on cases before them to the detriment of a straightforward interpretation of the letter and spirit of the law.
The reduction of the role of Congress and the interference of the courts have also contributed to the emergence of an imperial presidency. The Constitution gives only Congress the right to levy tariffs or declare war; but now the president imposes tariffs, sends troops off to war, and governs mostly by executive order. Much of this is “justified” by a need for expediency and quick decision making in running such a complex country – but this is, as Montesquieu and others point out, the sort of thing that led to the end of the Roman Republic.
