The United States Constitution: Post 1

The Constitutional Convention came together on May 25, 1787.  After electing George Washington as chairman, adopting the rules of procedures and agreeing that a simple majority would carry all questions put before the convention, Edmund Randolph, a Virginian planter, presented James Madison’s “Virginia Plan”.  It was the architecture of a new government, not a set of amendments to the Articles of Confederation.  A large majority of the delegates favored the idea that the convention should create a new government.

   They had arrived at Philadelphia with shared Enlightenment ideals:  the constitution and laws must be written and available to all citizens; the American government should continue to be a republic, laws passed by elected representatives; the states would continue and maintain a republican form of government.  There would be a separation of  powers between the central government and the states, and there would be separation of powers among the branches of governments, whether central or state governments.

   The Virginia Plan called for a strong central government with power to tax, to regulate foreign and domestic commerce and a national system of courts to apply the law.  It began with the way to separate and provide checks on those powers.  The new government would consist of three branches: an executive, a judiciary and a bicameral legislature.  The lower house of the bicameral legislature would be popularly elected.  The upper house, the Senate, would be elected by state legislatures.  The number of seats that a state held in either house would be determined by the state’s population.

   While this plan upheld Madison’s republican principle of popular election, delegates from states with small populations objected.  The compromise was that the Senate would represent the states while the lower house, called the House of Representatives, would represent the people, meaning individual voters.

   The question of representation was not settled, though.  Northerners worried about the most populous states, the South, winning and maintaining a large majority in Congress forever.  The South states were most populous because a large portion of their economy rested upon slave labor, the number of slaves continually increasing.  The Northerners suggested that slaves be identified as property instead of as people.  Southerners said “no” to that idea, aware that southern states’ census counts depended on slaves; if only the planters and other freemen were counted, the northern states would hold onto much larger populations and have huge majorities in Congress.  The compromise was that five slaves would be counted as three persons when congressional seats were assigned and when the federal government levied taxes.

   When it came to electing the head of the executive branch, the delegates settled upon the leader’s title, the President, and agreed to a novel way to elect the President, the electoral college.  While Lockean principles involving individualism and popular election of representatives had been incorporated into the plan for the new government, Locke’s distrust of pure democracy was alive and healthy, too.  The convention provided for indirect election of the President: each state would choose Presidential electors as it chose to do so and send its electors to the electoral college; the college would elect the President in a simple majority election.  If the college had a tie it cannot break, the matter would go to the lower house of Congress; each state would have one vote and the President would be elected by a simple majority.  The convention settled on four-year terms, providing no limit on the number of terms.

   Another compromise involved the opposing economic interests of the North and the South.  The Northerners brought up a protective tariff for American manufactures.  They wanted a high tax on imported manufactured items to drive them out of the market and enrich American manufacturing, centered in the north.  Southerners were consumers of manufactured products, not manufacturers, and the prices they had to pay would be much higher.  Northerners offered to include a provision in the Constitution that would guarantee the slave trade for twenty years; only South Carolina and Georgia were self-interested in importing slaves.  Several other southern states were phasing out slavery, maintaining a supply of slavery through natural procreation.  Slavery proved itself to be uneconomic.  Many agriculturalists realized that they would be better off economically to hire day laborers for wages than to maintain slaves.  However, threats of walking out of the convention by South Carolina and Georgia delegations plus the offer that the new Constitution would forbid taxing on farm exports by any government persuaded a majority of the delegates to pass this compromise.  Southerners would live to regret that decision.

   The finished product was accepted by the convention on September 16, 1787.  The following is this blog’s examination of the U.S. Constitution, which is the purpose of this blog.

   FEDERALISM: The Genius of this Republic

   Federalism is a compromise between a national and a local system of government.  It is a kind of separation of powers. The American revolutionaries were not at all interested in giving up the principles of Locke and the philosophies of Montesquieu and Smith and gamble on tyranny for a new and improved central government.

   There are five categories of governmental powers in federalism: 1) powers delegated to the federal government; 2) powers denied to the federal government; 3) powers retained by the states; 4) powers denied to the states; 5) concurrent powers held in common by the states and the federal governments.

1) The powers delegated to the national government are

·      coin money

·      regulate interstate and foreign trade

·      conduct relations with foreign countries

·      establish post offices

·      govern territories and admit new states

·      grant patents and copyrights

·      maintain the armed forces

·      declare war and make peace

·      establish immigration and naturalization laws

·      fix standards of weights and measures

·      make all laws necessary and proper for carrying out the delegated powers

2) The powers denied to the national government:

·      tax articles exported by the states

·      give preference to the trade of one state over another

3) The powers retained by the state governments:

·      provide for local governments

·      conduct elections

·      make laws about contracts, wills, and domestic relations

·      provide for and supervise schools

·      regulate commerce within the states

·      ratify constitutional  amendments

·      assume power not granted to the United States nor prohibited to the states

4) The powers denied to the state governments:

·      negotiate or sign separate treaties with other nations

·      coin money

·      impair the obligation of contracts

·      tax imports or exports without the consent of Congress

·      maintain troops or warships without the consent of Congress

5) Concurrent powers:

·      tax

·      borrow money

·      charter banks

·      pass bankruptcy laws

·      establish courts

·      build roads

·      promote agriculture, industry, and science

·      take property for public purposes

·      pay debts

SEPARATION OF POWERS: THREE BRANCHES

The separation of powers is at the heart of this constitution.  Corollary to it are the checks on powers held by each branch, providing a balance of power.

EXECUTIVE BRANCH: ENFORCES LAW

1)   These executive powers check the power of the legislative branch:

·      can veto law

·      influences public opinion (the bully pulpit)

·      calls special sessions of Congress

·      controls how vigorously laws are enforced

2)   These executive powers check the power of the judiciary:

·      appoints judges

·      controls how vigorously court orders are enforced

·      can pardon people convicted of federal crimes

LEGISLATIVE BRANCH: Passes laws

1)   These legislative powers check the power of the executive branch:

·      the House of Representatives can impeach (indict) the President and other high officials

·      the Senate conducts trials of impeached Presidents

·      the Senate approves presidential appointments

·      Congress can overturn President’s vetoes

·      Congress controls President’s programs through the “power of the purse”

2)   These legislative powers check the power of the judicial branch:

·      the House can impeach judges

·      the Senate conducts trials of impeached judges

·      the Senate approves appointments of judges

·      the Congress establishes number of Justices on the Supreme Court

·      the Congress can propose amendments  to the Constitution to overturn Supreme Court decisions

JUDICIAL BRANCH: Interprets laws

1)   These judicial powers check the power of the legislative branch:

·      decides on the meaning of laws

·      can rule that laws are unconstitutional

2)   These judicial powers check the power of the executive branch:

·      once appointed, judges are free from President’s control

·      can declare President’s actions unconstitutional

PROTECTION OF CIVIL LIBERTIES

(Locke, Montesqeuie and Smith in it from the beginning)

1)   A citizen arrested but not formally charged with a crime has the right to a writ of habeas corpus; the writ demands that the prisoner be immediately released unless the government can produce concrete evidence against him or her of a specific crime.

2)   Congress is forbidden from passing a bill of attainder.  A bill of attainder is a law wherein a legislature finds a person guilty of a crime.

3)   Congress is forbidden from passing ex post facto laws.  That kind of law penalizes people for doing something that is legal when it was done, but the new law makes the action done illegal.

4)   Treason against the United States shall “consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”  It takes two witnesses to testify that they saw the deed committed, or it takes the accused one’s confession in open court, to convict a person of treason.

However, these provisions in the Constitution were not sufficient to the passionate opposition to tyranny held by Americans of the 1780s and 1790s.   It was the precious Bill of Rights that finally persuaded a majority of Americans to approve of the new government in 1789.  That is the next subject for this blog.