• Tyler

The Constitution Has Always Been Controversial

In today’s politics, time and time again we see arguments derived from the language of the United States Constitution. Every branch of our government has always looked to the Constitution to either justify, or decry, proposals. At the end of the day, the Constitution itself is revered as a sacred document, which is why it is interesting just how controversial the Constitution was to begin with. Before discussing the controversies with the current Constitution, it is important to understand why The United States moved on from the original Constitution, the Articles of Confederation, to what it has today.

The Articles of Confederation and Its Woes

The Articles of Confederation (AOC) were proposed by Congress on November 15th, 1777 and ratified on March 1st, 1781. The AOC has been historically seen as failing for a few reasons. In Article V, no state would be allowed to have less than two or more than seven representatives in Congress which would only have one chamber. Meaning, if a state were ten times larger than another state, representation would not closely match person to person. Article III discusses military needs and explains that states were to “enter into a firm league of friendship with each other, for their common defense... binding themselves to assist each other, against all force offered to, or attacks made upon them”. These states also were allowed to pursue their own treaties with foreign nations. Because of this, states would not work together on behalf of all Americans, but rather only their states interests.

The amending process to the AOC was remarkably difficult. It required every single state, which at the time was 13, to ratify any change to the AOC, rather than a majority. The AOC was clearly going to be a source of contention in the long term. Additionally, the federal government established by the AOC had no way to bring in revenue to pay for national debts or services, depending on states to fund congress. This binding document, which barely bound the new country, at best was a way to organize some basic forms of government during the Revolutionary War. These portions, amongst others, were why founding fathers decided to meet and revise the AOC (Constitution).

Revolutionary Revisions

Once these issues became more apparent, a Constitutional Convention was called “for the sole and express purpose of revising the Articles of Confederation”. The Convention was convened on May 25th, 1787 where George Washington was the presiding officer. The delegates kept secret their deliberations. This allowed for the delegates to consider and re-consider ideas freely without any public chastising. To some, this convention was considered undemocratic for the very reason that it sought to replace the AOC with a new binding document that would remove much of the hard fought for state sovereignty. The only formal records of the deliberations that took place were notes taken by James Madison, with the delegate’s permission. These notes were not published until 1840, years after he died.

Virginia led the way at the convention, proposing, amongst other things, a strong legislative branch, an executive leader, and national courts. Through deliberation, delegates agreed to a two-house system where the lower house, the House of Representatives, would be based on population, and the other house, the Senate, would also be based on population. New Jersey had a different idea.

New Jersey did not want a new Constitution, but instead preferred to amend the existing AOC. Further, New Jersey proposed the congress should be able to levy taxes, and regulate treaties on behalf of the country. New Jersey was also quite vocal against the Virginia plan for representation, and without smaller states like New Jersey’s support, nothing would be ratified. Due to disagreements like these, the delegates trended towards proposing an entirely new constitution since it was found to be near impossible to get every state to agree on any issue, which the AOC required.

The single greatest point of debate, apart from slavery, for the convention was how to represent states in the national legislature. Small states refused to be forced into a union where larger states could dominate them. This led to the Great Compromise, where the lower house would be based on population, and would be the source for any tax bills, and the upper house would allow equal state representative votes. In order to allow the federal government to have complete control over interstate commerce, a point of feud with southern states, delegates agreed to allow slaves to count as three-fifths a person.

Further debates around whether the country should have one executive leader, or a group of people appointed to lead the country was also prevalent. Lifetime leadership roles, long single terms, and the eventual four-year term with a chance at re-election were debated as well. To help prevent tyranny, the convention also proposed an impeachment provision for the executive. The convention refused to allow presidential appointment by the legislature, because that would mean the executive branch is not truly independent to check and balance. A national popular vote to determine the national executive was also discarded since it would give remarkable weight to larger states. This is what led to the development of the Electoral College as it is today. Ironically, the delegates thought that after George Washington finished his initial, virtually guaranteed term as chief executive, the Electoral College would be almost always divided amongst many different candidates. That would trigger the House of Representatives to have to vote on an executive, the president, giving smaller states more weight.

The States’ rights to protect themselves from an invasion, ratify treaties, coin their own money, and others were traded for a new federal government to facilitate and guarantee fairness in the economy.

The Authority of the Constitution

The Articles of Confederation began with the words “To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting. Whereas the Delegates of the United States of America…… agree to certain articles”. The wording of this document meant that technically, the elected delegates in the country had sole authority. In the new Constitution used today, it begins with “We the People of the United States, in Order to form a more perfect Union….. do ordain and establish this Constitution”. By stating these words, the Constitutional writers implied that this document would be good for all people in the country, and it would be in the best interest for all states to ratify.

Since some states would not likely enjoy voting to ratify a new Constitution that stripped them of their powers, anti-federalists caused the writers to decide that the Constitution should only go into effect once nine states ratified it.

As discussed prior, one of the biggest issues with the AOC was the difficult method to amend. With that in mind, the delegates decided on a few ways for an amendment to be ratified in the new Constitution. This included Constitutional conventions by a two-thirds majority of states (which to this day has never happened), or a two-thirds vote by both chambers of Congress. Ratification would require three-fourths of states. 

Further debates at the convention hovered on language to include regarding the guaranteeing of rights, how trials and juries would work, and the qualifications for holding federal office.

The Birth of the Modern Constitution

Once the draft Constitution was complete, 35 of the 55 members present signed. One of the dissenting delegates, Elbridge Gerry of Massachusetts, refused to sign (Refusal) and stated in a letter to the Massachusetts State Legislature that he could not support a measure that, amongst other things, went above and beyond the purpose of the original convention, which was to simply amend the existing AOC, and he was objectionable to certain rules regarding executive influence, and there being no bill of rights. It is ironic that someone who seemed to have such strong convictions when it comes to protecting rights, would later give cause to the creation of the term “gerrymandering”. To benefit his democratic-republican party, Mr. Gerry drew district map lines in such a ridiculous manner it conjured images of a winding salamander.

When the drafts of the Constitution were sent out for states to review, the Constitution backers, the federalists, were a strong and unified front against opposition who were very divided.

This was when The Federalist Papers were published in newspapers to convince Americans why they needed a new Constitution. The most notable writers of the papers being Alexander Hamilton, James Madison, and John Jay. Within the papers, arguments were made as to why the new Constitution would maximize liberty while guaranteeing government effectiveness. One quote from Federalist Paper No. 51 In 1788 argued that “it is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part……. If a majority be united by a common interest, the rights of the minority will be insecure”. This was arguing that by having multiple parts of society, or in other words, levels of government and checks and balances, the threat of tyranny is reduced.

Their major opponent was the anti-federalist Richard Henry Lee. He felt the new Constitution would abolish many important state laws, the House of Representatives would not be responsive to the people, and that there was no way to guarantee liberty. Other anti-federalists felt, as mentioned before, that even proposing a new Constitution was illegal as it was not an amendment to the original AOC. They also felt no central government could effectively control the growing United States.

The United States Constitution was ratified on June 21st, 1788.

The Bill of Rights

Inspired by English influence and other state Constitutions, the first amendments to the Constitution were proposed by James Madison. On June 8th, 1789, to re-assure the anti-federalists, he proposed many amendments to the Constitution which eventually became the bill of rights. Originally meant to be added throughout the document, they ended up being collectively put at the end of the Constitution so that each one could sit on its own when sent for ratification. Most of these amendments pleased the anti-federalists, and led to a quick ratification across the United States. Ten of the twelve proposed amendments were accepted (numbers three through twelve) and became what we now know as numbers one through ten. The Bill of Rights was ratified on December 15th, 1791 (History).

The two that did not make it were first, concerning the representative system that was based in population. The second regarded the prohibiting of laws that can vary congressional salaries until after elections. The latter was ratified as the 27th amendment to the Constitution in 1992 which was the last time there was an amendment ratified.

The Constitution Today

The United States Constitution was perhaps the most contentious, and partisan, document in American history. It took a relatively speedy 13 months to pass the current Constitution compared to the AOC which took 40 months. However, the Bill of Rights took an additional 43 months to negotiate and add on. At the end of the day, through rigorous debating and amending, this document became the foundation for the country we live in today.

It is incredible that today, we all fall back on the Constitution and its words to guide us in making our more perfect union when at one point the Constitution was anything but perfect.

-Tyler, The National Watch

Note: Much of the Constitutional debate information is derived from the Harpercollins College Outline for the Constitution of the United States, 13th Edition, authored by Harold Spaeth and Edward Smith.