Who wrote the U.S. Constitution?

Form versus Administration

For Forms of Government let fools contest;Whate’er is best administer’d is best.

Alexander Pope, 1733

“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 Convention12 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, 1787Committee of Details

Representation is Power

PopulationWealth

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, and2. 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 draftJames 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 PreambleWe 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, South-Carolina, and Georgia, do ordain, declare and establishing the following Constitution for the Government of Ourselves and our Posterity.

The Final VersionWe 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.

Constitutional Drama

“[In mid-June 1788, a full nine months after the publication of the of the Philadelphia proposal, the Constitution was still struggling to be born, and its fate remained uncertain.”

Akhil Amar, America’s Constitution, 6.

The First Game 7 of the First World Series

“Indeed, the ratification contest was the final national election, although it was more like a series of primaries than a presidential contest since the votes were cast not on a single day but successively, in one state after another. Over and over observers tried to calculate how what happened in one state would affect what came later, which itself served to bind the nation together more tightly.”

Pauline Maier, Ratification, xi.

A Surprisingly Democratic Process

Eight states elected conventions under special rules less stringent than the general voting requirements

Two others all virtually all taxpaying adult white male citizens to vote.

Only New Jersey used its normal voting requirements

The Ratification Timelinehttp://www.usconstitution.net/ratifications.html

• December 7, 1787: Delaware ratifies. Vote: 30 for, 0 against.• December 12, 1787: Pennsylvania ratifies. Vote: 46 for, 23 against.• December 18, 1787: New Jersey ratifies. Vote: 38 for, 0 against.• January 2, 1788: Georgia ratifies. Vote: 26 for, 0 against.• January 9, 1788: Connecticut ratifies. Vote: 128 for, 40 against.• February 6, 1788: Massachusetts ratifies. Vote: 187 for, 168 against.• March 24, 1788: Rhode Island popular referendum rejects. Vote: 237 for, 2708 against.• April 28, 1788: Maryland ratifies. Vote: 63 for, 11 against.• May 23, 1788: South Carolina ratifies. Vote: 149 for, 73 against.• June 21, 1788: New Hampshire ratifies. Vote: 57 for, 47 against. Minimum requirement for

ratification met.• June 25, 1788: Virginia ratifies. Vote: 89 for, 79 against.• July 26, 1788: New York ratifies. Vote: 30 for, 27 against.• August 2, 1788: North Carolina convention adjourns without ratifying by a vote of 185 in

favor of adjournment, 84 opposed.• November 21, 1789: North Carolina ratifies. Vote: 194 for, 77 against.• May 29, 1790: Rhode Island ratifies. Vote: 34 for, 32 against.

The Ratification Debates: Predicting the Future

“The original interpretations of 1787-1788 could yield nothing more than reasonable explanations and predictions of what the Constitution would mean.”

Jack Rakove, Original Meanings, 160.

Legitimating the Constitution

1. Would it work?2. Could it provide a framework for political

stability?3. Would it facilitate or hinder the development

of a market economy?4. Who were We the People?

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, 1789-1815 (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 age-appropriate bibliographies.