Chapter One

Introduction:

Great Britain was the last European country to settle and sustain permanent
colonies in the present day United States of America. Eager to preserve their
settlements, colonists agreed upon the importance of reorganizing their lives and the
way they were governed. Colonial governments tasks were broadly speaking
divided between the representative assemblies, founded by the colony, and the royal
governors, named by the King. The elected Representatives from different
settlements were to meet annually in the House of Burgesses for the purpose of
conveying the colonists need to the Crown. Such representative assembly was
summoned in different colonies despite the restrictions it passed through. That was
not the case, however, for all the colonies.
Colonies like Plymouth, Connecticut, Rhode Island, New Hampshire, and
Massachusetts worked up the implementation of the social contract theory as means
to hinder conflicts upon the way of governance and to exercise democracy,
epitomized in compacts like the Mayflower Compact, the Charter of Maryland, the
Patent of the Providence Plantations, Massachusetts Body of Liberties, and William
Penns Frame of Government for Pennsylvania, among many others. For so doing,
representatives were chosen by and fro the mass of the population. What was
peculiar, however, was that not all the inhabitants of the colonies could participate in
the election of their representatives to the towns meetings or the representative
assemblies. Property qualifications, social and religious backgrounds, and sex as well
as race were undeniable requisite for such exercise of the voting rights in what would
become the United States of America, the first country to promote the establishment
of the full enfranchisement of all segments of the different peoples throughout the
Globe.
The full enfranchisement of all Americans was gained through a gradual
development. During the colonial Era, only white men with property could vote
keeping out the Quakers, Catholics, and the Jews. In an effort to open the electorate
to more white males, some colonies eliminated the property ownership as a
requirement to vote. Although the property qualifications for vote had been
eradicated, in answer to the popular will, not all Americans enjoyed the practice of
democracy. The catchphrase all men are created equal within the famous American
Declaration of Independence referred in an actual fact to white adult males who
4

Chapter One
owned properties. The Constitution, the makers of which were elected in every case
not directly by the people but rather by the state legislatures, did not voice all
Americans even though it devoted particular attention to prevent putting power
within the hands of the tiny elite of wealth and education. Furthermore, the people
were entrusted but with direct election of the House of Representatives, a part of a
part of the government. Moreover, the Constitution, which would not have been
made without the utmost resort to reciprocal concessions and compromise, was
ratified yet by popular minority. The sharp struggle was between the debtors and the
creditors. Debtors constituted the majority but most of them were keeping out of
suffrage by the property qualification of voting. Charles Beard stated that the
Constitution was ratified by a vote of one-sixth of the adult males; and the phrase
We the People would have literally been made We one-sixth of the adult males
instead. The Constitution was nevertheless ratified by almost all states and became
the supreme law of the land.
In the course of time, it proved somehow unsatisfactory inasmuch as the
implementation of democratic principles was concerned. It had thus undergone
alterations to the end of democratizing and preserving itself. Such alterations are
embodied in a series of constitutional amendments the first of which was the listing
of the guaranteed rights and liberties. The Twelfth Amendment reformed the way
whereby the president be elected. The Electoral College, whereby Americans choose
their president, has been seriously criticised on several counts. First of all, the system
makes it possible for the candidate receiving the largest popular vote to lose the
election. Secondly, critics point out to the possibility of winning the states electoral
votes while receiving the states narrowest popular vote. In such a case, the president
electors can stand in opposition to the will of the people. With regard to the
possibility of choosing the president by the members of the House of Representatives
in case none of the candidates receives majority of votes, the party that dominates the
House can easily support its members, thus vote to put them into the office. The
Three Post-Civil-War Amendments, adopted during the Reconstruction Era, have
banned slavery, construed the meaning of citizenship and granted it to the recently
freed blacks, and established the right to vote regardless ones race, color, or
previous condition of servitude respectively. Thanks to the Nineteenth Amendment
women became eligible to suffrage. More citizens enjoyed the right to vote thanks to
the Twenty-third Amendment which established it to residents of the District of
5

Chapter One
Columbia. Yet, such enfranchisement did not please all the states. For the purpose of
obstructing it, some states established several acts such as the Poll Tax, residency
requirements, and literacy and understanding tests, to name only these. They were
nonetheless repealed gradually. More citizens have been welcome to participate in
the selection of their President, Vice-President, and other officials thanks to the
Twenty-sixth Amendment which lowers the voting age to eighteen years of age.
Besides, there was the Seventeenth Amendment which provided for a popular
selection of Senators.

Chapter One
Section 1: Seeds of American Democracy in the Colonial Period
To claim that Christopher Columbus had been the first person to put feet in the
New World would be erroneous. Many people went to America before he did. The
Indians were among the first pioneers to settle in what is now the American
Continent. They did so thirty thousand years ago.1In spite of being different, Indians
had in common language, customs, and religion. It was until 1492 that Europeans
discovered what they named the New World. Seeking a new way from Europe to
Asia as well as wealth, and the spread of Christianity, Christopher Columbus, the
Italian adventurer, reached the land of spices, India, this was what he thought. He set
sail from Spain to reach the island which he baptized San Salvador_Holy Savior. He
believed it was in the Indies. In fact the island was off shores of a new continent
which Europeans named America.2It was the land of marvels on which everything
was possible. The newly discovered land represented the virgin area to which, slowly
and gradually, different European countries sent navigators for exploration. Spain,
France, and Great Britain respectively did so aiming at finding a new way, rather a
gateway, which would facilitate commerce with the East, bring gold and precious
stones, and convert more people into Christianity.
In 1513 Juan Ponce De Leon landed on what is now Florida. Though he was in
search of the miraculous water,3 he claimed the territory for Spain. About fifty years
later, Spanish settlers founded the first European permanent settlement. Additionally,
other Spanish conquistadors4 pushed by their lust for gold, like Hernando De Soto
and Francisco Coronado sailed to North America and explored what is now the
United States. Exploring Florida, The Mississippi River, Texas, and Oklahoma
respectively gave Spain the lions share in North America. The foundation of
Spanish settlements such as Saint Augustine and Santa Fe was the exploration
legacy.
France, too, was amid the first European nations which were eager to become
rich. Seeking growth of wealth like Spain, she sent explorers among whom Giovanni
Verrazano. Thanks to him, France claimed the present day Harbors of New York as

, J.E.BRANA, La constitution amricaine et les institutions, (Paris, Ellipses Edition, 1999), p. 5.

Europeans called the inhabitants Indians. Later on they have been described as Native Americans or
Amerindians.
3
Some settlers believed that there was a fountain whose water would give everlasting youth.
4
Conquistadors: Spanish soldiers, driven by greed for gold, explored and conquered America. They
were in search of gold and silver to take them back to Spain.
2

Chapter One
being hers. In addition, what is now Canada was claimed as French property. This
was thanks to Jacques Cartier, the French explorer, who discovered Saint Lawrence
River. France named her properties in the New World New France (La nouvelle
France). Yet they were neither well organized nor strongly maintained.
Great Britain succeeded at last in claiming territories as being hers. After a series
of ill-fated attempts to sustain an English settlement, the colonists succeeded in
planting the first permanent English colony in the New World. British sailors reached
Virginia, the earliest successful English colony. They named the river on the Kings
honor, James River, on the shores of which they started their lives anew after
founding the first lasting English settlement in America, Jamestown. The settlement
was, however, established in a fit of absent mindedness.5 By the end of the year, two
out of every three men died. As they were sent to Jamestown by the Virginia
Company for the sole sake of finding gold, as did Spain in Mexico, they became
busy draining for gold and did not grow enough food to feed themselves. The
colonists began to die either because of starvation, some diseases, or even
Amerindian attacks. Yet the company did not cease sending people there. It
gathered homeless children from the streets and a hundred convicts from Londons
prisons to be sent unwillingly to the colony.
Nonetheless, unlike the other European colonizers such as France and Spain,
Great Britain favored the private initiative6since the British Crown was weak and its
financial resources were limited. It is worth mentioning that in Virginia even a poor
man could have a farm of his own. John Smith, eager to preserve the infant
settlement, forced the colonists in Jamestown to work. Slowly and gradually, thanks
to a plant that grew like a weed: tobacco Virginia became rich. Recognizing that
the plant would bring more wealth than they could have imagined, Virginia settlers
became busy growing tobacco. As a result, many wealthy men went to Virginia and
brought workers to clear trees and plant tobacco. Yet because of hunger, diseases and
wars, three thousand out of three thousand five hundred sixty settlers died.
Those who survived reorganized their lives and the way they were governed. For
so doing colonists called for the foundation of The House of Burgesses the members
of which were representatives from various settlements along the rivers. The House
5

C. Ubbelohde, American Colonies and the British Empire1607-1763, (USA, Routledge and Kegan
Paul, 1969), p. 12.
6
A.H. Kelly & W.Harbrison, The American Constitution: Its Origins and Development, (New York,
Norton, 1991), p. 1.

Chapter One
was an elected legislative assembly supposed to meet annually. The Virginia House
of Burgesses resembled Parliament insofar as it embodied the principle of
representation.7 The representatives task was to transmit to the Governor what was
required in the colony. Though its influence was severely restricted, it became the
symbol of representative government. This was an important, if not the most
important, stepping stone towards changing American life and shaping its
democracy.8 If this were the case in one colony, one may wonder how colonial
experience would contribute into the development of American democracy.
Virginia, at the outset, witnessed in 1618 the foundation of the first representative
assembly. Colonies were established through charters by the Crown bestowing the
companies (immigration companies) the authority to establish laws, therefore the
right to have a quasi-sovereignty on the colony. Although the colony was under a
dual control, royal and company control, the local affairs were in the hands of the
Governor. A charter signed in 1612 vested much more power in the Company
Council. The latter provided the lord-governor and captain-general, the local
governor, with absolute authority and full military, executive and, law-making
powers. The local despotic government which wielded power oppressively did
nonetheless discourage immigration. For the sake of encouraging immigration, the
Company attempted a thorough reorganization of the local government. By now
governors were compelled to establish a representative assembly. Thus, via the
establishment of the assembly beside the local governor, the Virginia Company
modeled and founded the colonial government for Virginia. Yet, due to its financial
failure the Company lost its authority on the colony. Consequently, the King named a
royal governor; Virginia became the first royal colony in America. The
representative assembly, a mere Company creature, held no meetings.

Although it

was until 1639 that the King recognized the importance of its existence, such
assembly was summoned in every English colony.
Massachusetts Bay was another colony established by a trading company, and the
members of which were Puritans seeking a religious refuge in the abundant
wilderness. Unlike the charter of Virginia, which underwent alteration, the
Massachusetts Companys charter became the actual constitution of the colony. The

Ibid., p. 5.
Yet this beginning of democracy did coincide with the beginning of slavery. Two divergent
traditions came into existence on the newly discovered land.

Chapter One
latter named a governor, a deputy governor, and eighteen assistants to be the
members of the Council in which the power to make laws and ordinances was
bestowed. The privilege to participate in political affairs, after being confined to
members of church, as being freemen, became a prerogative. Being a member of
church was no longer a prerequisite to vote. Hence, a symbol of a democratic regime
highly and effectively required was to avoid driving out the voice of the people in the
decision making process. Slowly and gradually, every single habitation had its own
representatives to attend the General Assembly, the members of which were to meet
twice a year to elect a governor. The representative republic knew its routes towards
the foundation of a new form of government. Yet, property qualifications required
for voting was undeniable, a barrier that would weaken such foundation.
Another cornerstone of great importance in the evolvement of representative
governments in America was the charter signed in 1643 under the guidance of Roger
Williams of the Providence Plantations.9The charter dictated the inhabitants of the
towns were granted:
A free and absolute charter of incorporationTogether with the full
power and authority to rule themselves by such form of civil government,
as by voluntary consent of all, or the greater part of them, they shall find
most suitable.10

In West Jersey, William Penn11 adopted a form of government which was believed to
be the most democratic in the world. It was based on putting power in the people
who secretly elect the legislative body12.
To reinforce such democratic principles and ideas John Wise wrote: The end of
all good government is to cultivate humanity and promote happiness There is no
species of government like democracy to attain this end.

13

Such writings would

fasten and strengthen the spread of democratic ideas and their sponsors. Right to vote
had gradually been extended. More power was reserved to the popular assemblies.
Simultaneously, urgent restraints upon royal governors were favored everywhere.
The colonial charters defined the structure and the scope of political power. The first
charter of Virginia, for instance, provided that all inhabitants had and enjoyed
liberties, among which was franchise, though it is believed to grant few, if not any,
9

Roger Williams was banished from Massachusetts. He united four settlements to found the
Providence Plantations.
10
B. Stinebrickner(Ed), American Government, (USA, 1997), p. 116.
11
William Penn purchased West Jersey in 1692.
12
In 1702, both East and West Jersey passed to the Crown something which culminated in the death
of the plan.
13
John Wise was a minister in Massachusetts.

10

Chapter One
traces of democracy.14Nonetheless, to claim that the other Virginia charters, mostly
that of 1620, provided less right to its inhabitants to have a word in their government
is not withstanding.
The Ordinance and the Constitution of 1621 established the first
representative assembly in American and reaffirmed the right of
inhabitants to the form of government, laws, customs, manners of trial,
and other administration of Justice.15

The Mayflower Compact 1620 was and did much the same. Fleeing persecution
and seeking freedom of religion, some Puritans went to America in 1620 using
Mayflower ship. They settled on another territory to which they gave the name of
their town, Plymouth. They found themselves in another territory yet were again
subject to the British rule. As a result, they suggested signing a contract the use of
which provided them with an organized social life. The document, The Mayflower
Compact, was signed approvingly by those who were on the board of the ship. They
agreed to found a government a civil body politik whose task was to make equal
and just laws. The document is considered as the first governing document.
Government created by this veritable social contract, as described by Louis Hartz,
was to derive its power from the consent of the governed. It was based on the right of
individuals. The contract dictated that all freemen share in electing their
representatives. It brought into existence a form of a civil Lockean government16 as
opposed to a government subordinate to the church. Inspired by John Calvin, a
French lawyer and theologian, who claimed and re-asserted the idea of Martin
Luther, who himself claimed that human beings did not need the Pope to speak to
God.
Since there was no religious toleration,17 many English people stood against the
King and the church. Both of them were linked to each other and supported one
anothers principles.18 Consequently, Puritans who asked for a reform of such
doctrine and for change of the church from within, and who wanted liberty to be the

14

Ibid., p.233.
Ibid.
16
Lockean government should be rooted into the consent of the governed; and the function of which
must be the protection of its citizens and their properties. It stands against any governmental efforts to
promote or restrict a particular religious belief.
17
People in most European countries were expected, if not obliged, to have the same religion as their
rulers.
18
E.L.Woodward, A History of England, (London, Rootledge, 1962), p. 95.
15

11

Chapter One
paramount element in founding their society, were put in prison.19 Leaving England
towards America yearning religious freedom, since they were irritated by the rulers
insistence upon uniformity in religious observances, was an ultimate outcome of the
Kings church government and persecution. The newly discovered land was viewed
as an asylum for the first settlers. The latter, mostly Pilgrims to Plymouth, founded a
complete self government since they were not under the authority of immigration
companies. It was rather a clear exercise of the social contract theory in the
establishment of a government:
We whose names are under written do by these presents solemnly and
mutually in the presence of God, and of one another, covenant and
combine ourselves together into a civil body politik.and to enact such
just and equal laws from time to time, as shall be thought most meet and
convenient for the general good of the colony. 20

Thanks to such social contract, Plymouth settlers conducted successfully their own
affairs.
This fashion of conducting the colony own affairs was adopted later on by
Massachusetts. The company provided its members with the authority to rule over
the colony. Hence, when they went to America, they attempted to rule autocratically.
This rule was notwithstanding since immediately upon their arrival, the colonists
asked for a voice in public affairs. Control over government was held by elected
representatives. Subsequently, many other colonies adopted the newly spread fashion
of self- governing, using Plymouth political system as a sample, providing no room
for governmental authority, something which resulted in their growing away from
Britain, becoming more American than British. They ceased to be colonies. They
established themselves as independent states instead of being in a subsidiary
position.
Sooner had this policy been adopted and followed, The Mayflower Compact
became an important cornerstone document, which sought to forestall problems of
governance, and mirrored the embryo of American democracy. Likewise, the
Charter of Maryland of 1632 dictated that the laws were to be consonant to Reason
and agreeable rather than repugnant. Just as the previously named charters were the
Patent of the Providence Plantations (1643), The Massachusetts Body of
Liberties (1643), and the William Penns Frame of Government for Pennsylvania
19

Puritans were so called because they advocated a form of faith and worship the aim of which was to
purify the church.
20
K.W. Olson, An Outline of American History, (USA, US Information Agency, 1989), p. 18.

12

Chapter One
(1682), to name only these, the embodiment of the principles of democracy and
democratic, constitutional, government. Additionally, The Mayflower Compact stood
as a sample for Connecticut, Rhode Island, New Hampshire, and Massachusetts. It
helped them organize their political scene slowly and gradually.
They started first by holding meetings once or twice a year to discuss matters of
common interest. They were firm believers, as Alexis De Tocqueville noticed in his
master piece Democracy in America, that an association be it political or commercial
would save the common liberties beside the preservation and the prosperity of any
society, the members of which are required to have in common ideas which help
them to act, and therefore to preserve the existence of their society. The effect of all
these charters was to ensure the establishment of free and democratic governments.
Their primary purpose, however, differed from one colony to another. It was in
Connecticut, for instance, to create an atmosphere to spread the Gospel. That was the
reason why, Quakers, Jews, and Atheists were kept out of voting, while the elected
representatives had to own properties, believe in the Trinity, and hold good behavior.
Unlike aristocracy, which concentrates power in the hands of the tiny elite,
democracy, through its legislation, tends to promote the welfare of the greatest
possible number. De Tocqueville believed that its laws are more useful. To guarantee
both the establishment of such laws and the achievement of their ends, democracy
entrusts men chosen by the mass of population. Those men have in common with
their electors the same interest. Town governments had been developed in answer to
the daily Americans need. Their vitality and usefulness were to be undeniable. In
New England, for instance, town meetings adopted democratic methods to conduct
public local affairs, via which freemen could participate and have a say in fashioning
local policies. Conversely Americans in Southern provinces were subjects to the
Justices decisions and supervisions. The latter, since they were appointed by the
governor, were less free as compared to town officers in New England. Yet in
Southern as well as Northern colonies local administrators, be them appointive or
elective, entitled themselves with powers to free themselves, at least relatively, from
the British imperial regulations. Put in other words, Americans were a part of the
British Empire, yet freer and exercised more democracy through their town meetings,
as compared to other British colonies over the world. The democratic values
emphasized in town meetings and representative assemblies, seeking to overcome the

13

Chapter One
horrible handicap of their freedom imposed by the British Empire, were to staple
democratic traditions in America.
Before 1700, more than two hundred and fifty thousand people left the British
Isles for America. By the eighteenth century, ten thousand to fifteen thousand left
Britain every year.21 England ceased to be the chief source of immigration in that
large number of immigrants came from Germany, Ireland, Scotland, Switzerland,
and France. Still, these colonists, slowly and gradually, adopted themselves to the
culture of the first colonists. They had their town halls where citizens met to discuss
matters of common interest. This gave them a certain experience in self- government.
In Maryland, for instance, the first settlers tried to make the colony aristocratic yet in
vain, since the spirit of independence was commonly known and sought. No barriers
were to the colonists insistence on the guarantee of personal liberty and prerogative
right to have a say in their government thanks to the representative assemblies, since
a church membership as a prerequisite for voting was eliminated. Additionally, the
frontier way of life22 dictated on the pioneers to help and cooperate with one another,
an aspect which strengthened the idea that people were equal. Hence, it helped them
adopt democratic values and attitudes in that in most colonies all white males who
owned lands had a say in the way they were governed23 since they were entitled by a
right to vote, though became prerogative thanks to their properties in the colonies.24
Frontiersmen believed firmly in representative government, religion and
education. They were spearheading of a new civilization

25

thanks to which the

democratic principles, with which Americans were familiar, had been reinforced.
The Browns in their co-authorship book Virginia: Democracy or Aristocracy? , did
shed light on the importance of individual properties which could qualify only white
males to vote.26 Property being a prerequisite for voting would, however, consider
suffrage as a privilege rather than a right. This led critic to state that colonial
government did not function democratically, nor did the men who controlled them
21

B. Stinebrickner(Ed), American Government, (USA, 1997), p.60.

The frontier: an area where the European settlements came to an end and the Indians began. Their
farms and villages were very far from others. Consequently they were compelled to rely thoroughly on
themselves for their every day needs.
23
This was not the case in Boston, however. Out of three thousand inhabitants only two hundred
freemen could vote. (Ibid., p 49)
24
In his book An Illustrated History of the United States, OCallaghan believed that Americans had
right to vote more than other people from all over Europe.
25
W. Olson, An Outline of American History, (USA, US Information Agency, 1989), p.10.
26
C. Ubbelohde, American Colonies and the British Empire1607-1763, (USA, Routledge and Kegan
Paul, 1969), p.90.
22

14

Chapter One
believed in democracy.27 De Tocqueville, on the other hand, states that they
(colonists) were more conversant with the notion of right, and the principles of true
freedom; and all the colonies held the element of democracy. In the colonies people
got used to the notion of property within the reach of all men. Besides, democratic
governments established there brought the notion of political rights to the humblest
citizens. The colonial period witnessed the flourishing of the germ of democratic
tradition of governance. It was embodied in House of Burgesses, Mayflower
Compact, and New England meetings, among many others. These traditions
contributed in the development of democracy in American though differently.
In the midst of such statements one may stand indecisive about the over-all tone of
the colonial life in America. Was it aristocratic or democratic? The Browns have
interpreted this as a dichotomy aristocracy/democracy which did exist in colonial
America. Aristocracy embodied in the British Empire and its agents. Democracy, on
the other hand, practiced, or at least wished to be, in and by the colonies. What about
the over-all tone of the pre-revolutionary America and how their separation from
Britain was in itself a step forward in sustaining their practice of democracy?

27

Ibid., p91.

15

Chapter One
Section 2: Pre- revolutionary Period and the War of Independence
1-Declaration of Independence:
1733 witnessed the perpetual establishment of the thirteen colonies in the New
World. De Tocqueville states that the inhabitants of these colonies were all British.
Thanks to their common language they united themselves although progressively. He
deduces that the common British heritage shared by the colonists succeeded in
binding them together.28Prior to 1754, there were several attempts to found a union
of colonies. William Penn suggested a multi-purpose plan. First and foremost he
sought a union, and a common defense against the Indian tribes beside the regulation
of commerce among the colonies. Yet nothing was seriously taken of this proposal.
June 1754 witnessed the first seriously considered stirring of unity.
Representatives from New York, Pennsylvania, Maryland, New Hampshire,
Connecticut, and Rhode Island met at Albany Congress, which culminated in
drafting the Albany Plan of Union. Though it was held to solve Indian problems, it,
suggested by Benjamin Franklin, declared a union of the colonies badly required for
their preservation. It suggested naming a President-General to administer over a new
founded government, and a Council chosen by the colonial legislatures the members
of which were chosen in accordance with the taxes paid by each of the colonies. The
proposal bestowed the President-General and the Council powers of regulating
Indian trade, raising soldiers and vessels the accomplishment of which required
powers to make laws and levy taxes. It was signed approvingly by the representatives
of all the colonies except those from Connecticut. Parliament nonetheless did not put
it into effect in order not to give power to the colonial representatives. In any case
such proposal epitomized the colonists strong desire to manage their own affairs
admitting the importance of the union. Another meeting of the colonial
representatives was held in New York in 1765 to discuss the passage of the Stamp
Act. It encroached upon calling for the foundation of a union. It declared rather that
the colonists, of right, should enjoy the same rights as the Englishmen in the mother
country; and that no taxes should be imposed on them without their consent unless
through representation in Parliament.
In the course of time the Revolution had started. Colonies urged its
representatives to bind them by any action. The newly united colonies declared
28

J. Soppelsa, La dmocratie amricaine au XX sicle, (Paris, Ellipses Edition, 1999), p.9.

16

Chapter One
themselves independent from their mother country in form of a document, the
Declaration of Independence, one of the major landmarks in American history.
Independence for them meant political separation from Britain. Hence 1776
witnessed a clear-cut of all political ties that bound Americans with Great Britain.
Americans declared in the seventh of June 1776 that these united colonies are, and
of right, ought to be free and independent states, that they are absolved from all
allegiance to the British Crown, and that all political allegiance between them and
the State of Great Britain is, and ought to be, totally dissolved. This resolution,
initiated by Richard Henry Lee, led Americans to issue later on the fameuse
Declaration of Independence thanks to which the colonies were baptized as The
United States of America. Hence, the document announced the birth of a new nation,
eager to enter into the international arena as free and equal as other states, after
cutting the links with the ex-mother country to free themselves from awe of their
social and political superiors. Yet, independence, which was under continuous
assault by Britain, had to be achieved. The Declaration of Independence instigated
the colonies to toil tirelessly for a single end: Independence via setting forth
explicitly the philosophy of human freedom.
One of the most crucial ideas in the document is that men are created equal,
traced to the beginning of Christianity and inspired by great thinkers as Thomas
Hooker (1586-1647), James Harrington (1611-1677), John Locke (1632-1704), and
Charles Montesquieu (1689-1755), whom the Founding Fathers, the drafters of the
nations everlasting documents, read and quoted. The phrase, however, created
controversies due to its misunderstandings. Some took it to mean that men are
physically and mentally equal. Yet what Jefferson and his followers meant was the
recognition of distinctions between learning and ignorance, between ability and
incompetence is undemocratic. They meant that men were equal in the moral sense
and ought to be in the political sense.29 It withdraws any privilege based on the
accident of birth. Montesquieu states that men are born equal, but they cannot
continue in this equality. Society makes them lose it, and they recover it only by the
protection of laws. One may wonder, however, about the impact, or rather the
practice of such everlasting statements in the contemporary United States
(nonetheless this point will be more discussed in 2nd chapter, sechion2 &3rd chapter.)

29

C.J.Friedric; R.G.McClosky (Ed), Roots of Freedom, (New York, Pyramid books, 1966), p.36

17

Chapter One
The document came to refer to George III as a tyrant and his government as
absolute despotism. Men, believed Jefferson, by nature are free, equal, and
independent. Thus, to be subject to a power without ones own consent is
unthinkable. Likewise, any political power is to be founded for the sole purpose of
securing their comfortable, safe and peaceable living. Hence, man subjects himself to
a government done by him, or at least by his consent. Any other government which
does not meet such features is to be withdrawn or amended. The natural rights, such
as Life, Liberty, and the pursuit of Happiness, of which all men were endowed by
their Creator, were set forth clearly and eloquently in the document. Surely it states
the sole purpose of any government which is to secure these God-given rights.
Equally the document states that whenever any form of government becomes
destructive of these ends; it is the right of the people to alter or abolish it.
The Declaration of Independence was an outcome of political philosophy and
American experience. It reads in the course of human events, it becomes necessary
for one people to dissolve the political bands which have connected them with
another. Such phrases would echo Lockes statement of the peoples right to revolt,
furnish an arsenal for the felt embryonic revolution, and give it an international
appeal. Locke believes that revolution against any government which subverts the
ends for which it was created is not only a right but rather an obligation.30 Indeed the
document stems from an attack upon the British rule. It was a revolt against any
government which would invade the sacred sphere of human rights possessed by
individuals, among which there is self-rule, and autonomy, which, about this time,
became a commonplace. Such rights were set forth in the states constitutions written
after the Declaration of Independence; and did even voice other nations. These rights
after being prescriptive to Englishmen became universally sought, adopted, and
practiced. Jefferson described the document as an instrument pregnant with our and
the fate of the world.31 It had become more practical than a symbol; it provided the
model for other states to assert their independence. Its philosophy could be applied to
peoples everywhere since it voiced the rights of both free and independent states and
individuals and the rights of all men. Yet Frederick Douglass has once wondered

30

Lockes statement sanctioned the rebellions of American and French revolutions.

D. Armitage, The Declaration of Independence: a Global History, (USA, Harvard University Press,
2007), p.01.

31

18

Chapter One
whether or not those great principles of political freedom and natural justice
extended to Blacks.
Thanks to such creative and attractive leap, Americans started, by now, the
exercise of the political ideals, which showed the impact of democratic ideas
expressed in the Declaration of Independence. They established a standing law to
live by the first objective of which was to secure the unalienable rights as freedom
of elections, the right of the majority to reform or alter the government in case it does
not secure the governed rights; beside the enumeration of the fundamental liberties.
These objectives were embodied in the first constitution of the newly formed union.
It dictated the way the Confederation should be organized.

2-The First Union of States and the Articles of Confederation:

From 1774 to 1781, the colonies were governed by a non-constitutional body
known as the Continental Congress. It created two interlocking committees; one
charged with writing the Declaration of Independence, and the other with seeking a
form of confederation and drawing up the Articles. By the adoption of the
Declaration of Independence and the emergence of the first union of states, the body
became legal and constitutional, thanks to the Articles of Confederation. They went
into effect in 1781 and the Congress had the three powers at once in a single body. It
was under the Confederation Congress that the Bill of Rights, which guaranteed
religious liberty, free trial by jury, and protection against cruel punishment or
violation of Mans liberty and property, were set forth.32 The Union under the
Confederation Congress gained perpetuity yet it was rather intricate. Article II of the
Articles of Confederation provided: each state retains its sovereignty, freedom and
independence, and every power, jurisdiction and right. An article which created a
union under a form of a league of independent states each one with its own
government jealously guarding their rights. Congress, as a national legislative
assembly, was only a meeting of ambassadors of the sovereign states, which behaved
like nations. As a result, the Confederation familiar weaknesses became undeniable.
A close analysis to the Articles would reveal various deficiencies.
To start with, the Articles restricted the Confederation governmental powers.
Government was unable to act since no executive branch was settled. The absence of
32

This Bill of Rights would become a sample for the Bill of Rights in the second constitution of the
United States.

19

Chapter One
the other two powers, that of taxing and regulating commerce, would reinforce the
governments weakness. It financial status was precarious.

States were fully

responsible to coin their own money. Besides, it lacked the ability to enforce laws for
it had no court and had to rely on state courts. Congress without such powers to act
directly upon individuals in any matter was thoroughly dependent on states. Its
powers were confined to control Indian affairs, settling disputes among states, and
conducting foreign affairs; and certainly not having control over the army unless by
requisitions on states. In addition, the Congress was powerless to settle conflicts
between states. Had the government had equal control over states, New Jersey, for
example, would not have been compelled to pay heavy taxes when crossing the
Hudson River. Heavy taxes impeded the economic development. In such cases,
government proved unsatisfactory.
Its failure to gain control over states was doubtless. Additionally, Congress had
no power to compel states to supply funds to the central government. Hence, the
Congress was unable to discharge its indebtedness. Madison declared that: the
situation is becoming every day more and more critical. No money comes into the
Treasury, and people of reflection unanimously agree that the existing Confederation
is tottering to its foundation.33 Washington pointed that the Articles united the states
only by a rope of sand and the prestige of the Congress had fallen to a low point.34
Thus, this league was rather a confederated government of predominantly limited
powers. Additionally, no provision was made to enable the union to exercise
authority over the people of the United States nor was amending them a simple
process despite their apparent flaws. Such process required the ratification of all of
the thirteen states. Consequently, the government was always moving on crutches
and tottering at every step as described by Washington.35Jefferson stated that the
union became universally known as the least important and the least respected of all
the nations.36Yet to claim that the Articles of Confederation were a mere fiasco is
notwithstanding. Though they unified the states loosely, they helped them to gain
independence. They were a stepping stone towards the framing and the adoption of
the Union Second Constitution.
33

C.K. Burdick, The Law of the American Constitution and its Origins, (New York, The
Knickerbockers Press, 1922), p.26.
34
W. Olson, An Outline of American History, (USA, US Information Agency, 1989), p.45.
35
B. OCallaghan , An Illustrated History of the United States, (UK, Longman, 1990), p.33.
36

Ibid.

20

Chapter One
History has shown that peoples revolutions for independence are not supposed to
be aims but rather means to free themselves from foreign masters and their imposed
traditions and regimes. What was peculiar to the American Revolution, however, was
the Americans want to invent a country from scratch putting aside and for ever, not
their conquest but their cultural dependence. In fact the war expressed the
Americans resentment towards their state as being in awe of their mother country.
Surely the American Revolution was affected before the war commenced. John
Adams believed that it was in the the minds and the hearts of the people.37It was
sought during the first plantation in America. The colonies self-government growth
showed that they had never thought of themselves as subservient to the ex-mother
country. Rule from the outside was to be broken down. To this, they needed both a
pretext and a leader.

3-The American Revolutionary War for Independence:

Americans revolted against being ruled undemocratically. Englishmen believed,
in theory, that governments authority should be derived from the consent of the
governed. Americans held, on the other hand, that they, of right, should dissolve
and establish governments at will. This sounded both utopian and anarchistic for the
British. Although Americans had been governing themselves during the Colonial
Era, they were considered as second-class British subjects within the British Empire.
The colonists political authority was administered by the Crown which annulled the
colonial governments and appointed instead royal governors.
After the British-French seven years war,38 France gave up its properties in the
New World to Britain which started exercising its authority on its subjects.
Accordingly, King George III prevented the colonists from moving over the
Appalachian Mountains. Although this proclamation aimed at preventing wars with
the Indians, the colonists did not approve. Likewise, English Parliament and the
Crown enacted laws which aimed at making the colonies, with their abundant
materials and natural resources, subordinate to Englands will and interests. The
majority of the colonies showed opposition towards such laws that would reinforce
their subservience. Though the king assumed, yet arbitrarily, that the colonies were
37
38

Ibid., p.21.
British- French war is also known as French- Indian War (1754-1763).

21

Chapter One
not subjects to parliamentary control, laws enacted by Parliament, mostly taxes,
affected the colonists. Americans recognized the divergence between their interests
and the ex-mother country ones. The inhabitants realized that Parliament acted
against their will. This culminated in an outpouring of patriotic fervor in the colonies.
Consequently, relations between colonies and Great Britain witnessed a drastic
change. Colonists were compelled to shelter British soldiers. Much the same they
were compelled to pay taxes; this increased the colonists disapproval of king and
Parliament.
The new financial policy advocated by the British government supported the
growth of the British Empire at the colonies expense. It imposed taxes on them so as
it provided Britain with the money she needed. To inaugurate such system, the
British Parliament passed the Sugar Act in 1764 via which duties on wine, silks, and
coffee were imposed. Steps were taken to enforce such act. Besides, Americans were
compelled to pay duties on products on which they did pay any for over a generation.
Great opposition to the Act emerged. Merchants, legislators, and town meetings
considered seriously the expediency of the Act. It culminated in adopting the
catchphrase no taxation without representation through which Americans
denounced their allegiance to Great Britain. Since they were not represented in the
British Parliament, this latter had neither legal nor moral right to tax them. Otherwise
it would be a violation of human rights and a handicap for the colonists struggle for
political liberty, which would promote the adoption and the practice of democratic
ideas and ideals. Such phrase furnished a stronger American opposition against the
mother country.
Added to the Sugar Act, Parliament passed the Stamp Act thanks to which Britain
would raise more money. Lawfully the colonists were asked, if not compelled, to
buy stamps to be attached on newspapers, licenses, and wills. Conversely the
colonists believed that they were to be asked to pay taxes only by their own
assemblies in the colonies.39 Immediately representatives from almost all of the
colonies (nine out of thirteen colonies: New Hampshire, Virginia, North Carolina,

39

In a colony after another, taxes were not levied only in case of having elected representatives. In
other words, taxes were not to be levied only in accordance with the will of popular assemblies.

22

Chapter One
and Georgia did not send representatives)40 met in the Stamp Act Congress showing
refusal and opposition to the Act, which was repealed.
The Currency Act and the Billeting Act, enacted the same year, were equally
contended and unfavored. The latter dictated on the colonists to shelter and supply
the royal troops. Thereafter prominent men organized as Sons of Liberty, showing
their resistance, founded non-importation associations, which culminated in the
mother country trade falling off soon after their foundation. Moreover the
Massachusetts House asked for a congress, which was the first intercolonial meeting
ordered by Americans, the members of which were appointed by the colonies. Such
elected congress voiced Americans, whose delegates denounced the Stamp Act threat
and announced their boycott. By 1766, Parliament repealed the Stamp Act and
modified the Sugar Act. However, a year later Parliament anew adopted other laws
intended to impose duties on paper, glass and tea exported from Britain to the
colonies; again such fiscal program, called upon by Charles Townshend, aimed at
raising British revenues. The reaction towards the enactment of Townshend duties
was less violent, as compared to that of the Stamp Act. It led Parliament to repeal all
Townshend duties except on tea. There must always be one tax to keep up the
right. King George III stated.41 So long as the tea tax remained, the principle of the
Parliaments right to rule over the colonies remained, the colonists believed,
something which might devastate colonial liberties and banish the colonists
appealing of the instigation of democratic principles.
Tax imposed on tea, which was again fully unfavored, pushed a group of
Americans to throw tea into the sea after disguising themselves as Indians. The
British Parliament reacted intolerably towards such a move. It exercised its
oppression via sending more soldiers and warships. It decided to over control their
colonies in the new world. This new policy was, clearly punitive.42 Clearly the
relations between British and Americans were worsened by such actions and
reactions. To answer their want Americans resorted to arms.
At the outset, colonial leaders met in Philadelphia, in 1774, to form the First
Continental Congress. For the sake of consulting upon the present unhappy state of
40

Charles K. Burdick, The Law of the American Constitution: its origins and Development, (New
York, The Knickerbockers Press, 1922), p.6.
41
W. Olson, An Outline of American History, (USA, US Information Agency, 1989), p.30.
42
Tea Boston Party was intolerable. Yet it encouraged other colonies to join Massachusetts and rally
to its aid.

23

Chapter One
the colonies, Delegates, chosen by popular conventions, met in Philadelphia. The
meeting ended with a Declaration of Rights, denouncing and showing no obedience
to the Coercive Acts, and announcing their want to make the cause of taking up arms
known to the rest of the world, addressed to the people of Great Britain; and fanned
public opinion into revolutionary ardor making Americans more aware of the British
encroachment on their rights. This Declaration of the cause and necessity of taking
up arms marked a decisive turning point in the struggle between Britain and its
colonies in America.43 By this time, the King proclaimed that the colonists were
rebels, therefore outside his protection. Such proclamation, the Prohibitory Act, reasserted the colonists spirit of independence. It was a gift that Americans were not
to hesitate to seize.
In the midst of cries and ardors from both sides, the first blood of the war for
American independence had been shed. Within few days a common spirit of
patriotism spread over the thirteen colonies. Meanwhile Delegates attended in
Philadelphia the Second Continental Congress, presided by John Hancock, the work
of which came up with the declaration of causes and necessity of taking up arms by
claiming that the arms we have been compelled by our enemies to assume, we will
employ for preservation of our liberties, being with one mind resolved to die free
rather than live slaves. Congress appointed Colonel George Washington
commander-in-chief of American forces via which they reinforced their appeal for
separation since they neglected being part of the British Empire. Such appeal
required the approval of each colony. In any way Americans insistence on
struggling for their personnel freedom and self-government helped them to gain
foreign recognition as France did which was in revolt against Feudalism44. She gave
Americans aid and supplies. Added to this, many French volunteers sailed to
America among whom was Marquis de Lafayette.
In 1778, British were forced to evacuate Philadelphia thanks to French aid. When
such victories news reached the British Parliament, House of Commons voted to end
the war. This resulted in signing the Treaty of Paris, in 1783 which declared peace,
via which American independence, freedom, and sovereignty were acknowledged.

43

D.Armitage, The Declaration of Independence: A Global History, (USA, Harvard University Press,
2007), p.32.
44
Feudalism is a form of political and social organisation that existed in Europe in the Middle Ages.

24

Chapter One
Section 3: Post-revolutionary Period: Towards the Adoption and the
Framing of the Constitution
1-Historical Background of the Constitutional Convention:
In 1987, Associate Justice Thurgood Marshall45when celebrating the 200th
anniversary, insisted on the Americans obligation to recall every now and then the
Founding Fathers knowledge and experience that inspired them, the nature of
government they established, its origins, its character, and its ends, and the rights
and the privileges of citizenship, as well as its attendant responsibilities. Americans
proclaim proudly their Founding Fathers shared wisdom reflected in the American
Constitution. Yet T. Marshall argued believing that the government they devised
was defective from the start, requiring several amendments, a war and momentous
social constitutional government.46 Consequently, this Constitution gave the floor
to real coups dtat.47
Strong and irresistible want for more democratic institutions, produced by
economic, social, and political pressures felt and suffered by the Americans, led to
the discussion, framing, and the adoption of the New Constitution it was made in
motion which made of the colonies full-fledged, united strongly independent states.
It became a political unit recognized in the international arena. Under The Articles,
Americans wanted to lessen the union with Great Britain and to forge new bonds
among the thirteen colonies. Yet these bonds proved unsatisfactory. The Congress
was powerless to settle conflicts between states over their properties. The sharp
social struggles within the states appeared to presage general civil war.48 Yet such
struggles led to the Philadelphia Convention.
At the outset, disputes over the navigation on the Potomatic River between
Maryland and Virginia culminated in five states representatives meeting held in
Annapolis in1786. They resorted to the meeting during which they undertook to
come to an agreement concerning commerce on the River and

45

T. Marshall (1967-1991) is the first Afro-American Justice. He was appointed by President Lyndon
B. Johnson
46
T.Marshall, Race and the Constitution in American Government, B. Stinebrickner(Ed), p.67.
47
The term is used to refer to the constitution, and what led to its adoption. Yet, although the way
followed in making it may be considered as unconstitutional, the way it was popularly discussed and
the changes it underwent in accordance with public opinion implied that there was no resort to
violence in order to make it accepted and extended.
48
Olegard, Carr, Bernstein, &Morrison, American Government: Theory, Politics, and Constitutional
Foundation, 1961, p.254.

25

Chapter One
to examine the relative situations and trade of the United States, to
consider how far a uniform system in their commercial regulations may
be necessary to their permanent harmony. 49

They decided to invite other states for the meeting. Though it was not a full-fledged
meeting, since it gathered only five out of the thirteen states, it was a stepping stone
towards the Philadelphia Constitutional Convention the following year. It was to
consider rather more important issues than commercial problems. It was to take into
consideration the situation of the United States and to render the constitution of
the federal government adequate to the exigencies of the Union.50 Urgent revision
and changes of the Articles were badly needed. States were asked to send
representatives to Philadelphia, the capital of the Union, to hold a convention the aim
of which was to discuss such alterations. Few days later on, however, the Delegates
from the twelve states51 came to believe that the meeting should undertake a broader
task. Revision of the Articles could not satisfy their lust for a strong government.
States contingents to the Convention had experience in both colonial and state
governments. They presided by George Washington known by his integrity and
military leadership during the Revolution. Among the other prominent members,
there were Alexander Hamilton from New York, and James Madison, from Virginia,
a thorough student of politics and History.
The members threw aside the Articles and instigated the building of a thoroughly
new constitution; the discussions of which ruled in bolted doors and sealed windows
in order to guarantee their secrecy and freedom, which would inaugurate a new form
of government, the powers of which were to be stated and separated clearly and
carefully. The creation of the Constitution was a revolutionary act in that Delegates
met to decide upon the form of government that was supposed to endure for ages
to come: for endless and perpetual posterity52
Although their task was not clearly defined, at their arrival to Philadelphia, a
group of delegates from Virginia submitted a set of proposals known as the Virginia
Plan. Among the resolutions presented in the Plan there was the foundation of a
bicameral congress in which representation to be apportioned on the basis of
population, beside the creation of a national executive chosen by Congress, and a
49

C.K.Burdick, The Law of the American Constitution: Its Origins and Development, (New York, the
Knickerbockers Press, 1922), p.10.
50
Op.cit., p255.
51
Representatives from all the states attended except from Rhode Island.
52
J.R. Conlin, The American Past: A Survey of American History to 1877, (USA, 1987), p.165.

26

Chapter One
national court. Other plans from New Jersey, South Carolina, and New York were
later on presented. Unlike the Virginia Plan, which was a real departure from the
Articles, the New Jersey Plan proposed revising them. It proposed the continuation
of the old Congress with its single chamber. The Plan called for the foundation of a
unicameral congress and guaranteed equal representation for all states. Besides, it
suggested providing Congress with the power to regulate interstate commerce. The
most striking proposal was to make of the federal law the supreme law of the
respective states. Much like the Virginia Plan, it provided for a federal executive,
and a judiciary. After discussions, representatives voted for the first plan.

2-Aspects of the Form of Government Discussed Upon in the Convention:

A-Bicameral Congress:
After discussions delegates voted seven to three for accepting the Virginia Plan
for further deliberations. An elaborate work of a committee suggested taking it with
great care. The plan was debated section by section aiming at making the final
decision on each point. The Convention came up with the creation of a national
government, which would collect its own taxes, make laws, and enforce them, with
two houses Senate and the House of Representatives. In the former, states would
enjoy equal representation: two Senators from each state with per capita vote instead
of a one vote for each state. A six-year term was agreed upon in the Convention to
gain rotation in the House. The Constitution provides that: The Senate of the United
States shall be composed of Two Senators from each State, chosen by the Legislature
thereof, for six years; and each Senator shall have one vote.53The agreement upon
this provision was a legacy of long debates.
Delegates introduced four proposals for the choice of Senators. The first
suggested choosing Senators by the state legislatures. The second provided that they
should be chosen by the people. The third suggested that they should be elected by
the House of Representatives from persons nominated by the state legislatures. The
fourth one provided that Senators should be appointed by the President54. Both the
third and the fourth proposals did not have any seconder. The first and the second
were fully debated. Strong feeling favored the election of the Senators by state
53

The Constitution of the United States, Article 1, Section 3.

C.K.Burdick, The Law of the American Constitution: its Origins and Development, (New York, the
Knickerbockers Press, 1922), p.161.

54

27

Chapter One
legislatures in order to achieve the sovereignty of the several states. Yet after more
than a century from the adoption of the Constitution a strong feeling appeared
favoring a popular choice of the Senators. This change in sentiment resulted in the
adoption of the Seventeenth Amendment which provides that Senators shall be
elected by the people. In the latter, House of Representatives, representation would
be based on population included within this Union which is determined by excluding
Indians not taxed and three fifths of all other persons.55 Its members, who are chosen
by the people, shall choose their Speaker. The Constitution does not contain any
provision as for his powers and duties. Under the rules of the House, however, they
are of a great importance. He has the power to appoint different committees with
their chairmen. Besides, he has power to recognize or refuse to recognize any
representative who desires to speak on any measure.
While the right to vote ones representatives is constitutional, the qualifications of
voters is left to the States: the House of Representatives shall be composed of
Members chosen every second year by the people of the several States, and the
Electors in each state shall have the Qualifications requisite for Electors of the most
numerous Branch of the State Legislature.56 Qualifications of a representative were
agreed upon in the Convention without much discussion. To be eligible to be a
member of the House, the candidate shall be a seven-year citizen of the United
States, and shall have attained the age of twenty-five years. Customary the candidate
shall reside in the State in which he shall be chosen; this qualification was added to
the Constitution. There were different opinions as to whether the provision should
include properties and financial qualifications or not. The Convention, however,
seemed unable to come to an agreement; and those opinions were left out. The
provision did not include any financial qualifications. Two years as a period in the
House was easily agreed upon.
In the legislative matters, however, both houses are equal. Each must pass a bill
by a majority of vote. Power to pass bills for raising revenues is vested in the House
of Representatives. With regard to this matter the Constitution provides: All bills for
raising revenue shall originate in the House of Representatives; but the Senate may

55

Op.cit., Section 1. All other persons referred to the Negro slaves. Prior to the Civil War and the
abolition of slavery, Negroes did not have right to vote. They were not counted in the population of
the Union; they were rather considered as properties.
56
Ibid., Section2.

28

Chapter One
propose or concur with Amendments as on other bills.

57

Delegates relied on state

constitutions and experiences to achieve such agreement. A bicameral system of

government was adopted in almost every state and had achieved success. Many other
aspects of the government designed by the New Constitution were copied from state
constitutions. Many other points and controversies were raised and discussed in the
Convention.

B-The Election of the President:

To start with, one of the crucial controversies was over the election of the
President. Several methods of electing the President were suggested in the
Convention; either by the people, by the state governors, by Congress or by an
electoral college. President elected by congressional choice would make of him
subservient to Congress, that was the reason why delegates believed that the
President should be chosen by the people. By the closure of the Convention the
election of the President by the Electoral College was approved. People are to elect
the electors of the President. The Convention adopted a scheme that would frame the
election of the President via the Electoral College. The Constitution provides that:
Each State shall appoint, in such Manner as the Legislature thereof may
direct, a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may entitled in the Congress, but no
Senator or Representative, or person holding an Office of Trust or Profit
under the United States shall be appointed elector.58

Each state was asked to choose electors equal in number to its Senators and
Representatives. The electors would meet to gather votes for two persons. They, in
their ballots, were supposed to list two names. The one who receives the majority
will be elected President. The second highest number of votes will be relied on to
elect the Vice-President. In case none of them receives the majority of votes, the
House of Representatives will select the President from the five contenders having
the largest number of votes, and the Vice-President will be selected by the Senate. In
any case the individual citizens right to vote is not guaranteed by the federal
government but rather by their local governments; a privilege given to the state that
may result in barring the citizens from the right to vote for the president.
The Constitution provides that the candidate, who shall be a natural-born citizen
or a citizen of the United States, shall not have attained the age of thirty-five years,
57
58

Ibid., Section 7.
Ibid., Article 2, Section 1.

29

Chapter One
and shall be a fourteen years resident within the United States in order to be eligible
to the office of President, and shall hold the office for four years. The President holds
seven offices in one. He is at once chief magistrate, chief legislator, chief
administrator, leader of his party, commander in chief, chief diplomat, and national
leader. As chief magistrate the President is expected to have part in different
activities as he is the symbol of the country. He receives dignitaries from other
countries, delegations of businessmen, and representatives of other groups. He
appoints judges and can arrange punishment, reduce a sentence or grant a complete
release from penalty. President, with the consent of the Attorney General, rules on
requests for pardons.
As chief legislator the President develops legislative programs and works for their
enactment as he is the only person responsible to develop a comprehensive
nationwide program. As head of the executive branch the President takes care that
the laws be faithfully executed. He has the responsibility for overseeing the
operations of the executive branch, removing any appointive official who performs
executive functions, and he shares with the Congress control over federal agencies.
Soon upon his nomination, President becomes the leader of his party which must
support him to be elected and to adopt his legislative program. The President of the
United States is the commander-in-chief of the military and the naval forces. Hence,
he has the responsibility of training, equipping, and deploying them. Also he has the
task of protecting the security of the nation against external foes as well as
suppressing riots and internal disorder.
The President may order the armed forces to assist states and local police to
maintain law and order. The Founding Fathers entitled the Chief Executive with the
power of conducting foreign relations. The Constitution provides that the President
appoints and receives ambassadors and other public ministers, and makes treaties.
Yet these powers are by and with the consent of the Senate. Additionally, the
political leadership falls on the shoulders of the President. All his roles complement
each other. His success in one of these strengthens the others. During the
Constitutional Convention, Delegates suggested that he should be elected for seven
years. Yet such proposition was withdrawn. In the course of time, other suggestions
were made with regard to the way the President to be elected. They will be
deliberately discussed in Section 3.

30

Chapter One
The fact of being the most powerful democratic nation does not necessarily imply
that the United States was so at its beginnings.59 The constitution-makers were
divided into two main schools on this issue. One may wonder whether or not was the
use of democracy dimmed in the American constitution. The Fathers feared an
excess of democracy. Madison believed that democracy can admit of no cure for
the mischief of faction, and have been as short in their lives as they (democracies)
have been violent in their deaths.60Likely was Hamiltons view of the ancient
democracies. He admitted that they never possessed one feature of good
government. Their very character was tyranny: their figure deformity61 since there
was no limit on the scope of the political power. The Founding Fathers, when
drafting the Constitution, suggested a system which would put limits upon the scope
of the political power. They intended to establish a representative republic, and a
constitutional government which implies a fundamental law_to which governments
no less than citizens were subjects, superior to other laws. It aimed at both limiting
governments power and securing the individual rights.
A Constitution is the means whereby authority and liberty are balanced
in a state without vesting too much power into government or emphasis
on much individual freedom.62

C-Separation-of-powers/Checks and Balances:

American leaders are known to believe strongly on Rousseaus description of
human nature. Man, for him, is a being naturally good, loving justice and order. Yet,
they had another view of Man. They considered him as a political animal, selfish and
aggressive, who trying to survive establishes an organized society. It was on the
ground of this ambivalence of Mans nature that the Founding Fathers, eliminating
any monopoly exercised by a ruling elite since these rulers are capable of aggression
and avarice, came up with the everlasting American Constitution. In other words,
another conflict was between Delegates who favored the adoption of democratic
principles in the political system, discussed upon in the convention, and Delegates
who were less enthusiastic about democracy.
The conflict culminated in making the people directly responsible to elect the
members of the Lower House; and the Senate, the President and the Federal
59

C.J.Friedrick & R.G.McClosky (Ed), Roots of Freedom, (New York, Pyramid books, 1966), p. 22.
Legard, Carr, Bernstein, & Morrison, American Government: Theory, politics, and Constitutional
Foundation, 1961, p.106.
61
Ibid.
62
Ibid., p.252.
60

31

Chapter One
Judiciary were far from being under immediate control of the voters. Senators were
to be chosen by state legislatures, President elected via the Electoral College (as
mentioned above), Judges were not to be elected; they were to be appointed by
President and confirmed by Senate. Yet such undemocratic features of the
constitution were not irrevocable. Hence, changes proved possible to be made and
adopted. Slowly and gradually establishment of universal right of all white men,
Negroes, and women to vote was extended without altering a word of the
constitution. (These changes will be entirely discussed in section 3/C). Thus they
succeeded in establishing for themselves a comfort and a safe cooperative democratic
sphere based mostly on the consent of the governed. They strove to live under the
rule of common Reason and Equity as the different systems of election and
representation for the House of Representatives, the Senate and the President were a
further safeguard against turbulence and folly of democracy.
De Tocqueville identifies Equality, which implies achieving equal right
regardless ones class, race or creed, as a basic value of American democracy.
Americans, in fact, considered liberty and equality as corollaries rather than
contradictions. They were given fair shake and equal chance, yet failure or success
was individual and not communal. However this widespread dichotomy liberty and
equality has its own deficit. Negroes did not enjoy such equal chance. It is sadly true
that slavery, brutal and barbaric, coexisted hand-in-hand with circumstances which
both promoted and favored liberty/equality in American life whose system cried out
against it. Yet little had been done to alleviate these wrongs. Consequently the
problem of the Negro in America created a critical unrest of the nation; again less
had been done for the Negros social and political adjustment. (This point will be
more explored in the second chapter).
New other alignments raised yet resolved by new other compromises. Delegates
who attended the Constitutional Convention favored the individual states rights.
Others, on the other hand, asked for the foundation of rather stronger, as compared to
the one under the Articles, central government. The lust for centralizing the supreme
power, which ought to emanate from the people, in a democratic nation is an ultimate
legacy of loving and believing in equality. Centralization would guarantee individual
independence and liberties. Such central government would, from time to time, stand
as an outward Mans assistance. Man considers government as a support of his
weakness. Therefore the Forefathers set forth for a thoroughly new system of
32

Chapter One
government. They created rather a federal government which they provided with the
power to collect taxes and regulate trade.
It is both necessary and desirable that the government of a democratic
people should be active and powerful; and our object should not be to
render it weak or indolent, but solely to prevent it from abusing its
aptitude and its strength.63

Following Montesquieus concept of the balance of powers in politics, Delegates

favored separation of powers. Therefore equal branches of government were
established. Their allocation resulted in making them harmoniously balanced and
checked by each other. Americans worried about the foundation of an abusive
government as was the British one and almost all those which prevailed over Europe.
In contrast to those governments, the American government was more or less based
on the popular will since the ruling elite had been given limited powers, and citizens
enjoyed a share in the government unlike their counterparts in Europe. Moreover,
Americans wanted to create equilibrium in their government. Division and separation
of powers, to be opposed to one another and controlled by one another, was their
debates outcome.

They believed that the national government ought to be

established, consisting of a supreme legislative, judiciary and executive powers, in

order to exercise full authority by operating directly upon individuals who showed
obedience to the Constitution and approved that it was to be supreme. States as much
as individuals were brought under the national government; they were no longer a
league of sovereignties. Yet advocators of states rights repudiated the national
government supremacy. The Constitution, unlike the Articles of Confederation, when
adopted did not contain an article that provided that each state retains every power
and jurisdiction and right which is not expressly delegated to the United States. It
included, however, a series of prohibitions of state actions, an enumeration of powers
bestowed to the federal government, beside limitations upon the scope of its power.
Yet, after its adoption, the Tenth Amendment came to declare that: the powers not
delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.
Unlike Thomas Hobbes who believes that power should not be shared, Locke
states that division of government into three branches, with each branch having but
the proper power it needs, helps keeping out the real danger of absolute power
63

Alexis De Tocqueville, Democracy in America, (R.D .Heftier (Ed), New York, 1956), p.307.

33

Chapter One
reserved to any individual or group. Montesquieu agrees that such separation would
safeguard liberty. He states that liberty would be highly promoted if power were
divided into three branches acting independently of each other. Such separation
would prevent the abuse of power and authority. It is mostly sought and adopted in
democratic states. His form of government was presented for England but became
more important for the United States of America. The model was called upon in the
Constitutional Convention and presented to the Americans in the Federalist Papers.
Hamilton stated his view on how the three major branches of the central government
should be separated and how they should run. Government that adopts the
separation-of-powers policy bestows each of the three distinctive branches different
political and legal powers. The legislative branch makes laws as the First Article of
the Constitution reads: all legislative powers herein granted shall be vested in a
Congress of the United States; the executive branch executes, administers, and
works for the enactment of laws, as it protects, preserves and defends the
Constitution; and the judiciary that interprets their meanings. Besides, each of these
controls the work of the others and the amount of power vested in. Congress is
bestowed with the power to impeach the office holders of the executive as well as the
judiciary branch. The executive has the power to veto bills introduced by the
Congress. The third branch of the government with the power of judicial review can
decide whether or not the act of the legislative and the executive is constitutional.
The Constitution of the United States provides that the legislative power is within
Congress. The executive power is in the President. The judicial power, power to
decide upon cases and controversies, is vested in the Supreme Court and the federal
inferior courts established by Congress. None of these should be exercised by anyone
who holds power in a different branch. Yet they are not merely kept sealed off from
each other. For instance, with his power to veto any law, the President has a say in
the lawmaking process. In other words, the three branches should not be so far
separated as to have no constitutional control over each other as Madison wrote.
The separation-of-powers policy assigned by the Constitution is not complete. It is
restrained by the check and balance doctrine. The latter allows each of the three
branches to brake the action of one another. As the legislative writes and makes the
laws, the executive may veto them, and the judiciary determines whether they are
constitutional or not. Additionally, Congress keeps an eye over the composition of
the executive (with regards to the nomination of the President in case no one of the
34

Chapter One
candidates received the majority of vote as mentioned above). The Presidents power
to appoint judges, ambassadors, and other executive officers is restrained by the
Senates advice and consent. This degree of intermingling of the three spheres of
actions does not at all mean that a branch of government may usurp any of the
functions of the other branch.64

3-Ratification of the Constitution and its Amendments:

The Constitution, in order to meet the feature of enduring for ages to come,
adopted Article V which provides: The Congress, whenever two thirds of both
Houses shall deem it necessary, shall propose Amendments to this Constitution.
The supposed-to-be everlasting American Constitution is subject to constant
modifications over time. Unlike the Articles of Confederation, which provided that:
any alteration at any time shall not be made in any of them; unless such alteration
be agreed to in a Congress of the United States, and be afterwards confirmed by the
legislature of every State., Article V quoted above proposes two different
procedures for amending the Constitution; either by a two-third majority in both
Houses, or by a convention called upon by Congress in response to the request of the
legislatures of two-thirds of the States. Likewise Article V suggests two methods
whereby the Amendments may be ratified; either being adopted by three-fourths of
the states legislatures, or by conventions in three-fourths of the States. It is customary
for Congress to require a seven-year time limitation for the ratification of the
Amendment.
Although the Constitutional Convention was convoked to amend the old
constitution, it proceeded to draft a new one. Delegates proposed, debated, and
adopted a constitution which without the approbation of those to whom it was made
would become of no importance. The political unrest witnessed by the people gave
them right to alter or abolish the existing regime and institute a new one. After the
framing of the New Constitution which provided provisions for the foundation of a
new government, as wished by the people, it had been submitted to the United States
assembled in a Congress. The latter subjected it to a convention of delegates chosen
in each State by the people thereof for ratification. The document was ratified by
eleven States. The convention of delegates chosen in Delaware showed its
64

C.K.Burdick, The Law of the American Constitution: its Origins and Development, (New York, the
Knickerbockers Press, 1922), p.143.

35

Chapter One
unanimous approval to the presented document. Consequently, Delaware was the
first State to ratify the Constitution. The convention of Pennsylvania, the second
State to ratify, voted forty-six to twenty-three in its favor. Few days later on New
Jersey approved it unanimously. January the 2nd of the following year witnessed a
unanimous vote of the convention of Georgia. The next State to ratify the
Constitution was Connecticut. After a hard fight the Constitution obtained
ratification by the convention of Massachusetts on February the 6th. In the
convention of Maryland the vote of the Constitution supporters overwhelmed its
opponents one. Maryland ratified it on April 28th. Although the fight against the
Constitution was more vigorous in South Carolina, as being influenced by the
convention of Virginia which refused to ratify, it (the Constitution) gained a decisive
victory. The New Hampshire convention accepted to ratify the document on June 21st
after being influenced by the Convention of Massachusetts. It was the ninth State to
ratify.
The instrument required the Ratification of the Conventions of nine States shall
be sufficient for the Establishment of the Constitution between the States so ratifying
the Same.

65

The Constitution opponents, prior to its ratification, had many

objections while drafted. They asked urgently to amend it before its submission to
the state conventions. On the other hand, its supporters fought to make it ratified
unconditionally and subject it to the conventions without amending; unless via the
process provided in the instrument. Hence, the Constitution gained ratification and
went into effect. It was clear, however, in the midst of these different and divergent
positions vis--vis the Constitution, that the Union could not preserve its supremacy
and go into operation successfully; and the new government did not start operating
under the new Constitution, which is described as the result of a spirit of amity, and
that of mutual deference and concession..,66 until April 30, 1789. The first Congress
of the United States, under the new Constitution, was held from March 04th, 1789
until March 03rd, 1791, during which Madison introduced the first ten Amendments
known as the Bill of Rights. The submission of such proposals was a legacy of
ideological conflict between the Federalists and the Anti-Federalists, which is dated
back to the Constitutional Convention, which threatened the overall ratification of
the National Constitution.
65
66

The Constitution of the United States, Article VII.

It was so described by Hamilton.

36

Chapter One
A-The Bill of Rights:
The first ten Constitutional Amendments were drafted in order to protect the
Constitution from the widespread protests against the absence of a bill of rights.
Fearing unlimited federal supremacy, the States (three-fourths of the States) accepted
to ratify them. They were considered as means whereby to limit the powers of the
Federal Government and protect the rights of the citizens and of the States. Hamilton
believed that the American people enjoyed such rights; therefore their assertion
would be unnecessary. He pointed that the American people surrender nothing, and
as they retain every thing, they have no need of particular reservations. Besides, he
feared that such reservations would imply that any other unmentioned rights would
not be guaranteed and protected. Hamilton, in favor of the Constitution, claimed that
the Constitution is itself, in every rational sense, and to every useful purpose, A
BILL OF RIGHTS.67 Jefferson, on the other hand, pleaded their assertion believing
that people should be able to secure as many of their rights as they can. Thus the
necessity of these rights and the desirability of their assertion were commonly felt;
and most Delegates insisted on the inclusion of the Bill.

It both protects and

guarantees the following rights, as being the chief principles to secure human liberty:
1- Freedom of religion, of speech, of the press, of peaceable assembly and of
petition. In this matter, the Bill prohibits Congress from making any law
respecting the establishment of religion. The Establishment Clause of the
First Amendment prohibits congressional establishment and/or preference of
one religion over another, or over irreligion.
2- It dictates that right of ordinary people to keep and bear arms, necessary to
the security of the State, shall not be infringed to the end of preventing
government from disarming the people to impose rule, and purge public
opposition to government.
3- It prohibits the quartering of the soldiers in times of peace or war; unless in a
manner prescribed by law with regard to times of war. In times of peace, the
quartering of combatants may not be unless with the owners consent.
4- It provides protection against unreasonable search and seizure.
5- Likewise, the Fifth Amendment bulwarks another range of individual
freedoms. It guarantees a public trial, in case of infamous crimes, with a
67

A. Hamilton, Federalists N 84 entitled Certain General and Miscellaneous Objections to the

Constitution Considered and Answered.

37

Chapter One
jury composed of members of the State where the criminal committed the
crime, and dictates that: no fact tried by a jury, shall be otherwise
reexamined in any Court of the United States. It prohibits compelled selfincrimination, as it prevents government from depriving citizens life, liberty,
of property without due process of law.
6- Rights to a speedy and public trial, to be informed of the nature and the cause
of ones accusation, to be confronted to witnesses against him, to obtain
witnesses in his favor, and to the Assistance of Counsel for his defense are
secured under the Sixth Amendment.
7- It preserves litigants right of trial by jury in most civil suits heard in the
Federal Courts.
8- It forbids cruel and unusual punishments, a further guarantee in Criminal
Laws.
9- Rights enumerated in the Constitution, however, do not disparage those
already retained by the people.
10-Eventually, the Bill reserves powers not delegated to Federal Government, by
the Constitution, nor prohibited to the States, to the States or to the people.
It has, hence, become a fundamental symbol of freedoms guaranteed in the
United States as it made explicit those rights that the original Constitution had
only implied. Madison believed.68
Given the methods required for amending the Constitution, and its ratification
provided in that instrument, it had been assumed that the inclusion of alterations
within the original formula would be very difficult. Yet this feeling has been
modified; and the Constitution has been amended to be updated and current with the
popular sentiments, since its adoption, twenty-seven times, the first of which were
the Bill of Rights ratified in 1791. The Eleventh Amendment, which was ratified in
1798, was called upon in response to a Supreme Court decision which ruled that
federal courts could not hear to cases raised by private citizens against States. It
clarified the power delegated to the Judiciary not to hear to cases between a state
and citizens of another State or citizens of any foreign state.

B- The Twelfth and the Three Post- Civil- War- Amendments:

68

M.Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth
Amendment, (Rhode Island, Brown University, 2004), p. 10.

38

Chapter One
The Twelfth Amendment, ratified in 1804, changed the way whereby the
President and the Vice-President were elected. It was the only that gained ratification
among many other proposed amendments to alter the process of electing the
president and vice-president. It supersedes Article II, section 1, Clause 3 which
demonstrated the way whereby the President and Vice-President shall be elected.
The Article dictated that each elector could cast two votes. The person receiving the
majority of votes would become President. Unlike the President, the Vice-President
did not require the majority of vote. He would be named to the Office in case of
receiving the second greatest number of votes. (As it has been mentioned above).
The Twelfth Amendment changed this process. It adjusted the electoral system to
conform to the unanticipated development of a two-party system.69
It enables the electors to cast two different votes; one for the President and the
second for the Vice-President; instead of two votes for the President. Then lists of all
votes for president and vice-president are drawn up. The person receiving the
majority of votes in the first list, the presidential list, is named President; as the
person receiving majority of votes in the second list, the vice presidential list, is
named Vice-President. Majority of vote is still required yet for both offices. The
Amendment did not, however, change the process whereby House of Representatives
and Senate choose the President and Vice-President in case none of the candidates
receives the majority of votes.
Another group of Amendments were adopted, in a period of crisis, after the Civil
War. The three post-Civil-War Amendments secured both equality and popular
democracy for all Americans. They banned slavery; hence, the colored population
would become more and more welcome to participate in the political scene.
Slavery in America is dated back to the exploration period when the Spanish and
the Portuguese used the enslaved Africans to replace the Native Americans in the
gold mines, and to work the sugar, coffee, tobacco, rice, and cotton plantations. In
the Colonial Era, a Dutch ship brought twenty enslaved Africans to the Virginia
colony at Jamestown. Slavery was mostly controlled by the Portuguese, Spanish and,
Dutch traders. After 1730, it was directed by English and North American traders. In

69

Ibid., p. 11.

39

Chapter One
the course of time some colonies had more blacks living there than whites. They
were relied on in the cultivation of rice in colonies like Georgia and the Carolinas.70
By 1800, a number of northern states had abolished slavery; and the Federal
Congress banned it. Still it spread rapidly from Georgia to Texas, and the slave
population rose to reach four million in 1860. Prior to the end of the American Civil
War and the passage of the Thirteenth Amendment, twelve generations of blacks,
descendants of the first African slaves imported by European traders, lived in
America as enslaved people. Most of them lived in slaveholding states under codes
and laws defining them as chattel property which meant human being with no human
rights. Few laws were enacted to prevent slaveholders from torturing and
intimidating their human properties, and a few slaves could escape their brutal
punishments and inhumane whipping. In the midst of such agonies and controversies
vis--vis slavery and slaveholders harshness with the enslaved blacks between the
anti-slavery north and the slave-owning south, slaveholding states, seven states of the
deep South, seceded from the Union of States, and most of southern congressmen
departed from Congress to form the Confederate States of America in response to the
election of Abraham Lincoln, openly opposed to the institution of slavery, at the head
of the United States of America.
Southerners feared that a constitutional amendment would be adopted, during his
presidency, to end slavery or to stop its expansion. This does not imply, however,
that slaves did not rebel against their holders; yet their rebellions were brutally put
down. In any case conflicts among Americans furnished an arsenal for a brutal civil
war during the beginnings of which the free blacks, who did volunteer to fight for the
Union, were unwelcome to be accepted as soldiers. By so doing, President Lincoln
gained whites support for the war, and avoided turning it into a war against slavery
rather than a war for the preservation of the Union. Two years after the outbreak of
the war, blacks could join the army. Although their willingness to die for the Union
became undeniable and they gained public acclaim for their heroism, blacks still
suffered discrimination officially and unofficially.

They were still treated as

runaway slaves that were to be captured.

Recognizing that slaves would fight for their freedom, southerners adopted a
measure to arm slaves and make them serve in the army of the Confederacy in return
70

In other colonies like New England and Pennsylvania, however, slavery was less extensive since the
settlers were believers in utopian religions which forbade slavery.

40

Chapter One
for freeing them. Thus the Confederate forces named 300.000 black soldiers in the
troops, granting their freedom. Fighting whether for the Union or for the
Confederacy gave the enslaved African Americans the opportunity to liberate
themselves. The deadliest war in the American history came to an end when the
Confederate forces were utterly defeated. Likely their economic base, which
depended on slave labor, was bitterly destroyed. They recognized that fighting
against the United States became impossible and their resistance collapsed in 1865.
The end of fighting required the encompassment of two other victories: the total
repudiation of secession, and the ultimate end of all forms of slavery. Effectively the
Reconstruction Era,71 the postwar period, witnessed the restoration of the Union, and
slaves were freed either by state action or by the Thirteenth Amendment. Prior to its
ratification, slaves were freed by President Lincolns Emancipation Proclamation. It
was issued during the American Civil War in order to declare freedom of all slaves in
the Confederate States, to those who escaped to the Union lines. It declared: All
persons held as slaves within any State, or designated part of a state, shall be then,
thenceforward, and forever be free.72 Considered as a war measure that would not
be applied once fighting ended, the Proclamation had not ended slavery, which
continued to exist in some states, permanently. It, in any case, was a step toward the
ultimate end of slavery in the United States.
Abolitionists, after the war, sought freedom for all slaves, not only for those
already freed by the Proclamation. Lincolns campaign for the presidential election
of 1864 was mostly based on working on the passage of a constitutional amendment,
believing that it would play an active role in his re-nomination, to abolish slavery
thoroughly throughout the United States. Once re-nominated as President, Lincoln
pressed Congress to pass the suggested amendment. His efforts met with success.
The Amendment was ratified, in 1865, by the vote of the adequate number of states,
and declared the banning of slavery, in direct terminology, in all states of the Union
as it removed it strictly within the bounds of law. The Amendment states: Neither
slavery nor involuntary servitude shall exist within the United States, or any place
subject to their jurisdiction. More slaves were liberated thereafter as they were
guaranteed a degree of citizenship. Such Amendment would secure the future peace

71

Reconstruction Era refers to the postwar period between 1865and 1877 during which the
Confederacy and slavery were likely destroyed.
72
Gorden Leidner, The Thirteenth Amendment, (in http://www.greatamericanhistory.net)

41

Chapter One
of the country by eliminating the current situation being half slave and half free.73 It
is divided into two main parts. The first section prohibits slavery and any involuntary
servitude, while the second bestows Congress with power to enforce the
Amendment.
The first twelve Amendments are considered as means to supplement or clarify
the Constitution. They made something implicit explicit rather than revising it. The
Thirteenth Amendment is viewed, however, as a challenge to the original text. Hence
the discussion of its adoption witnessed opposition from Republicans. Some of them
declared that the Constitution needs to be obeyed rather than amended. Others
assumed, as most Americans, that the original text should remain static. It,
nevertheless, was adopted as an expedient measure to make the slaves emancipation
constitutional. Yet did it simply ban the American peculiar institution of chattel
slavery? Or did it make all Americans equally free? Debates and struggles to attain
and define freedom have enlarged after the ratification of the Thirteenth Amendment.
It took the nation in a different direction. First, it helped Americans rediscovered the
importance of the amending technique. The latter would promote the inclusion of
constitutional alterations within the Constitution without eviscerating it or
confronting the implications of rewriting another whimsically to avoid constitutional
paralysis. Thanks to the Amendment, Americans recognized that the venerable
Constitution provided amending it, expressing the Founding Fathers notion of an
adjustable instrument, to achieve a major social reform, as did the Amendment,
instead of tearing it down. Second, it left Americans to figure out the origins and
meanings of freedom.
One may wonder if only one amendment could adjust the Constitution to become
adequate to the exigencies of the new status of African Americans. The unavoidable
answer to this interrogation is No. Subsequent interrogations are raised to question
the powers given to Congress under its second section.

African Americans

themselves, the former slaves, believed that the surest guarantee of equality lay in
tangible economic and political power instead of a parchment promise of legal
freedom.74 Time had come to add other amendments under this issue providing
more than outlawing slavery and freeing slaves.

73

John R.Vile, Encyclopedia of Constitutional Amendment, Proposed Amendments, and the

Amending Issues 1789-2002, (USA, ABC-CLIO, 2003), p.450.
74
Op.cit., p.61.

42

Chapter One
The fourteenth Amendment, ratified in 1868, was proposed by Congress, one year
after the Thirteenth Amendment, to grant citizenship, define its meaning, and secure
liberties of the recently freed slaves. The African American whether a freed slave or
a descendent from a Negro, as a freedman, residing in any state within the United
States was not a US citizen and could not attain citizenship. He could neither attain it
from a State nor by the virtue of birth in the United States. Thus he could not enjoy
the privileges and immunities of citizenship. That was a Supreme Court decision
ruled in Scott v. Sandford case in 1857.
Dred Scott moved with his owner Emerson, who worked in the army, to Illinois, a
free state. From 1837 until 1843 Scott and his wife used to travel with their master
and his wife Irene Marie Sanford to different states, again states which prohibited
slavery. Meanwhile the Scotts had their first child Eliza Scott. In 1846, after the
death of John Emerson, Scott believing that his long stay in free states gave him a
legal opportunity to claim for his freedom, tried to purchase it from Irene Emerson.
Emerson refused. Subsequently he resorted to the Court. The Court of Missouri ruled
that the Scotts were legally free. Another trial was brought to the court, by now by
John Sanford, Irenes brother. The Court, that formerly approved the involuntary
freedom of slaves once taken to free states, denied its former decision and ruled that
Scott was still a slave even though he had resided for a long time in a free territory.
It, construing the meaning of citizenship provided in the Constitution, declared that
he was not a US citizen. Therefore he was ineligible to bring suits to the federal
court. Additionally, slaves being considered as properties could not be taken away
from their holders as stated in the Fifth Amendment which declares that No person
shall be deprived of life, liberty, or property.
According to the Court, the Founding Fathers stated that the African Americans
were unwelcome to adhere to the US political community and enjoy the same
privileges and immunities as the white race. Granting Scott freedom and autonomy
would grant to the Negro race the right to enter every other State and the full liberty
of speech in public and in private upon all subjects upon which its own citizens might
speak, to hold public meetings upon political affairs, and to keep and carry arms
wherever they went.
Chief Justice Roger B. Taney who ruled the decision believed that it would
unhinder slavery and settle the disputes over the issue once, and for all. Such
decision did instead fortify oppositions to slavery, and did lead in motion to
43

Chapter One
secession of Southern supporters of slavery, thus to the American Civil War.
Eventually it led to the adoption of the Reconstruction Era Amendments. In such a
way, a Supreme Court decision could serve as a catalyst that stimulated
constitutional changes.
The first section of the Fourteenth Amendment, which was ratified in 1868,
overturned the Dred Scott decision, and provided new and clear meaning of
citizenship.75When the Civil War ended, Congress passed a legislation to guarantee
further rights to the recently freed slaves. This measure became known as the Civil
Rights Act, adopted in 1866, during the Reconstruction Era. It considered all
persons born in the United States, and not subjects to any foreign power, excluding
Indians not taxed as citizens of the United States no matter their race or color, and
regardless whether or not they were once slaves. It expanded their rights to, in
addition to birthright citizenship, make contract, sue (and be sued), inherit, and
purchase, hold, or sell personal properties. The Act comprehensively protected
minorities against discrimination because of their origins or their ethnic heritage. To
make this Act constitutional, and relied on in ruling decisions within the Supreme
Court, it was added to the original formula under the form of a constitutional
amendment.
According to Jacob M. Howard, who submitted the Amendment, the citizenship
clause provided in its first section had but declared the law of the land which
considered that every person born within the limits of the United States, and subject
to their jurisdiction, is by virtue of natural law and national law a citizen of the
United States. It elucidates the meaning of citizenship and removes all doubt as who
are or are not citizens of the United States. In a nutshell the citizenship clause means
that not anyone person born within the geographical boundaries of the United States
is its citizen. He has to be fully and completely subject to its jurisdiction in every
sense not owing allegiance to any foreign sovereignty. Therefore he may vote, carry
a US passport, and enjoy a full range of rights. By now, slaves, the protection of
whom was the essence and the paramount purpose of the Amendment, were not
counted as three-fifths of a person in the apportionment of representatives in the
House and the Electoral College as well, or in direct taxation.

75

Yet it did not make a clear distinction between national and state citizenship.

44

Chapter One
During the Constitutional Convention, there was a sharp struggle upon taxation
and representation of the slave population. Northerners favored taxing slaves, but
without being represented in the House of Representatives. Southerners, on the other
hand, did not want their slaves to be taxed; rather they wanted them to be counted in
the apportionment of the seats of the House. Delegates, to settle the dispute, agreed
upon basing both taxation and representation on the whole Number of free Persons
and three-fifths of all other Persons.76 Section 2 of the Amendment declares that
Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State, excluding
Indians not taxed., overturning the Three-Fifths Clause. Additionally, it provides
that in case of an attempt to disfranchise blacks, representation, of states that deny
the black voting right, shall be reduced in the proportion which the number of such
male citizens shall bear to the whole number of male citizens twenty-one years of age
in such State. It by and large yet unexpectedly expanded the voting right and led to
the passage of the Fifteenth Amendment.
The latter regardless ones race, color, or previous condition of servitude
guaranteed and established right to vote to the new citizens of the United States. It
declares: the right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or previous
condition of servitude. It is believed to be the last step of Reconstruction. Before the
ratification of the Constitution, blacks did seldom enjoy their right to vote. In the
course of time most of the slaves, if not all African Americans, had been
disfranchised. Even after the ratification of the former Amendment, both northern
and southern states were reluctant to grant to them such right either explicitly via
enacting statutes or implicitly via tolerating discrimination.
Most of the states did not allow blacks to vote, even states wherein they
constituted an absolute majority of the population. Besides, organizations like the Ku
Klux Klan practiced attacks against blacks preventing them from voting. As a
subsequent consequence of such violence, Congress passed the Enforcement Acts
(1870-1871) fining the KKK to reduce its power, and outlawing the resort to
violence in order to keep the freed slaves out of the ballot poll. Republicans seeking
putting down the problem of black vote favored adding a constitutional amendment.
76

Despite its injustice, the word Persons in the Article did implicitly recognize slaves humanity.
That was John R. Viles opinion,

45

Chapter One
The Fifteenth Amendment was supposed to be a cure for such intense struggles.
Congress passed it in 1869 to be ratified in 1870 by Republican states, and Southern
states which were compelled to in order to be readmitted to the Union. It did exempt
African Americans from being discriminated via prohibiting them from exercising
the elective franchise. Still the problem of the participation of blacks in the civic life
was not settled down.
Several states enacted laws to accept but the registration of persons who had been
voters or their descendants regardless their literacy abilities.77African Americans
were unable to meet this criterion. While illiterate whites could register without
being tested, they met the discriminatory tests which disabled them to register, thus
to vote. The Supreme Court nullified both sophisticated as well as simple-minded
modes of discrimination which effectively handicap exercise of the franchise by the
colored race. Such law was the first to be declared unconstitutional on the grounds
of the Amendment. Other states resorted to intimidation, violence and assassination
towards blacks to prevent them from practicing their right. The Amendment which
prohibited states from disfranchising blacks by the inclusion of voting qualifications
within their constitutions was not fully applied in all states until after the passage of
the Voting Rights Act in 1965, a century after its ratification. It made those
restrictions upon vote lapse.
The full enfranchisement of all segments of the American population was
achieved, in motion, via the passage of the Nineteenth, the Twenty-third, the
Twenty-fourth, and the Twenty-sixth Amendments which guaranteed right to vote to
women, to the District of Columbia, to those who fail to pay the poll tax, and to
Americans who are eighteen years of age or older respectively. These were the
Twentieth-Century Amendments that, hand-in-hand with the previous Amendments,
constituted the milestones of the national franchise extension, as aftermaths of social
changes, keeping out any removal of the voting rights. Besides, there was the
Seventeenth Amendment that provided for a popular election of the Senators.

C-The Twentieth- Century Amendments:

Women, in general, in the United States, have been discriminated. Yet this was
not the case during the colonial times. The Virginia assembly, for instance, agreed to
give grants of land to women as well as to men; womens work was important. When

77

That was the Grandfather Clause enacted by several states in the beginning of 1895.

46

Chapter One
the colonies were successfully settled, women were witnessed doing all kinds of
work. They spoke for themselves in the courts of law. They practiced medicine. They
even supervised plantations hand-in-hand with their roles of making clothes,
preparing food, and teaching children customary reserved to them. In the postrevolutionary America, wives of prosperous merchants in the growing towns imitated
English standards, lived, and behaved as ladies. Law, medicine, and teaching became
professions reserved solely to men. In other towns, farms and rural communities,
girls kept on working but they received lower wages as compared to those paid to
men. Hardships such as harmful working conditions, long hours, and low wages have
fallen upon Negro women with double harshness.
In his book The American Woman: Who Was She? , A.F. Scott stated that when
the Civil War ended in victory they (women) assumed that they, along with the newly
freed slaves, would receive the right to vote,78 although male abolitionists believed
that they (women), who were among the active abolitionists, should wait in order not
to jeopardize the chances of the Negroes. Benjamin Franklin stated long ago that
they who have no voice in making the laws, or in the election of those who
administer them, do not enjoy liberty, but are absolutely enslaved to those who have
votes and to their representatives.79
Being aware of constituting one-half the American people, and relying on the
Fourteenth Amendment, which prevents any state to abridge the citizens ( all citizens
oh the United States) from privileges and immunities, right to suffrage included, and
taking into account that the American Constitution opens with the words We , the
people American women became firm believers that they must, and of right ought
to, ask the Federal Constitution to secure to them justice and the blessings of
Liberty. The latter would entitle them with right of suffrage, and therefore have
representatives in Congress. Hence have a voice in the making of the laws.
Otherwise their privileges and immunities would be abridged at every turn.
Congress regulating suffrage for women was badly needed in a republic where in
some States women were full-fledged citizens enjoying their right to vote. In others,
however, such right was denied; thus womens political condition would degrade to
reach that of a slave. She was viewed as an inferior being without any legal standing.

78

A.F.Scott (Ed), The American Woman: Who Was She?, (New Jersey, Prentice-Hall Inc, 1971),
p.90.
79
Ibid., p.92.

47

Chapter One
She could not make a will. Nor could she sell a property; and certainly she could not
vote or enjoy education which was primarily for boys. Women were shocked when
recognizing the similarity between their own legal position, their own traditionally
inferior status, and that of slaves. In the nineteenth century, the United States
witnessed a fruitful endeavor which put womens sphere under question.
In New York in 1848, a group led by Elizabeth Cady Stanton and Lucretia Mott
called a Womans Rights Convention of one hundred women and men to meet in the
local church. It discussed the social; civil and religious rights of woman. It witnessed
the inauguration of a rebellion never seen before. They launched the woman suffrage
movement. The Convention, after much delay, decided to adopt The Declaration of
Independence with some slight changes to declare both their grievances and their
feelings about their deprivation, women suffrage was a crucial issue. It was hard for
them to collect all their grievances. Throughout this declaration, they took a survey
of the degraded condition of women, and showed the importance of inaugurating a
movement to call upon the improvement of her education and elevation. The
Declaration of Sentiments and Resolutions is believed to trace the beginning of the
fight to achieve womans suffrage. It read:

We hold these truths to be self-evident: that all men and women are
created equal. Whenever any form of government becomes destructive of
these ends, it is the right of those who suffer from it to refuse allegiance
to it.The history of mankind is a history of repeated injuries and
usurpations on the part of man toward woman, having in direct object
the establishment of an absolute tyranny over her.80

It is clear that the document reproduced the same text of the Declaration of
Independence; with the substitution of King George with all men. It stated that man
had compelled woman to submit to laws which had been made without her consent;
hence she had been deprived the right to vote whereby she could have representation
in the halls of legislation. Additionally he had taken her property, and made her
receive lower wages. If married, she had to show obedience to her husband since he
is the master. In case of separation, the law supported and strengthened the
supremacy of man. If single, he had deprived her of the facilities to obtain a thorough
education. In different aspects of life man allowed her but a subordinate position. He
80

The Seneca Falls Declaration of Sentiments and Resolutions, July 19, 1848 in Les Etats-Unis:
Histoire et Civilisation:tmoingages et documents, C.J.Bertrand, (France, Presse universitaires de
Nancy, 1983), pp.127, 128.

48

Chapter One
denied her public participation in the affairs of the Church. Such degradation in
social, civil, and religions positions of women would result in the entire
disfranchisement of one -half the people of the United States; and would make them
feel aggrieved, oppressed, and fraudulently deprived of their most sacred rights. Yet
the right women needed above every other was the right of suffrage. declared
Susan Anthony, who devoted her efforts first in the antislavery movements, then to
womans suffrage. She has been called the greatest individual in American suffrage
movement.81
People who attended the Convention insisted, after announcing womans
grievances, that she had immediate admission to all the rights and privileges which
belonged to them as citizens of the United States. E.C. Stanton and Susan B.Anthony
formed the famous the National Woman Suffrage Association, soon after the Civil
War, to ask for an Amendment to the Constitution in favor of women suffrage.
Another association, the American Woman Suffrage Association, was formed in
favor of bringing amendments to the different states constitutions which
disfranchised women. These two bodies united, behind the goal of seeking a
constitutional amendment, to give birth to the National American Woman Suffrage
Association. Stanton was its first president. In 1871, the organization sent a petition
to Congress requesting the extension of the voting right, included in the Fifteenth
Amendment, to reach women. Yet they were disappointed, and showed opposition to
the ratification of both the Fourteenth and the Fifteenth Amendments.
By the closure of the nineteenth century, the former slaves were enfranchised, yet
women still could not vote except in few western States. In the course of time,
women succeeded in gaining some access to higher education; and they learned how
to organize themselves in their journey seeking equal rights. Slowly and gradually
rights movements merged. Some suffragists did even resort to parades, silent vigils,
and hunger strikes. Soon after, the Nineteenth Amendment was ratified.
In an editorial in The New York World entitled Womens Right to Vote,
published in March 14th, 1915, the editor stated that women suffrage will not reform
the government, nor will it purify it. Women suffrage, however, will produce a more
representative and responsible government. Hence, enlarging the suffrage will
stabilize democracy. In any democratic State, every adult subject to government shall
81

John R. Vile, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending

Issues 1789-2002, (USA, ABC-CLIO, 2003), p.19.

49

Chapter One
be entitled to vote in ordering the policies of that government to prevent power from
being a grave evil. Such right, to be enjoyed in the United States, required different
paraphernalia. To gain access to the ballot box, one needed having a high rank, land
and primogeniture. He needed high incomes and money. By the time of the
ratification of these Amendments those different paraphernalia swept away.
Democracy moves forward seeking it self-preservation that is the reason why it
stands in opposition to women disenfranchisement, which is considered as senseless
as manhood disenfranchisement long ago. This flexibility and the lust for selfpreservation of democracy are chief characteristics of the American Constitution.
As early as 1920, the National Womans Party proposed an Equal Rights
Amendment. The party focused on the importance of the passage of an amendment
to the Federal Constitution that would ensure womens suffrage.

Its grassroots

efforts played an active role in gaining the Amendment ratification which was
advocated so long before. Prior to its congressional adoption, the suffrage bill was
first brought to the House of Representatives but was voted against. Then, it was
brought before Congress in 1918 yet a few votes were lacking to reach the majority
of votes, although President Wilson made strong appeals in favor of the passage of
the bill. It was introduced again, in 1919, before the elections of 1920 to obtain the
necessary votes in both chambers. It was voted upon by a 350-15 majority vote, and
declared ratified in1920 after a long campaign lobbying for its inclusion. The
Amendment prohibits both the Federal and the local disaffirmation of womans right
to vote granting it in all the United States elections. The presidential election of 1920
was the first occasion for women to exercise their right to vote. After the WW II,
more women took jobs; yet customary subordinate and unequally paid. The
Amendment was suggested to outlaw sexual as well as racial discrimination. It
declares: Equality of rights under the law shall not be denied or abridged by the
United States or by any State on account of sex.82
As for the Twenty-third Amendment, it guaranteed the right to vote to residents of
the District of Columbia, in national Presidential and Vice-Presidential elections via
permitting to them to elect the presidential electors. This right was denied to them
although they paid both federal and local taxes, drafted into the military services, and
subjects to all the United States laws. They did nevertheless participate in local

82

Constitution of the United States, Amendment XIX.

50

Chapter One
elections. Congress adopted an act in 1871 stating that both of the City of
Washington and the District of Columbia were united into one entity, and
administered it as the seat of government. Being under direct authority of Congress,
the District enjoys less self-governance as compared to the states. By means of
Article One, Section 8 of the Constitution, Congress exercised a full authority over it.
Additionally, it restricted the voting right to residents of states, thus its residents,
since the District by no means can achieve statehood, enjoyed no voting rights,
although its population exceeded that of the thirteen least populous states, therefore
they did not enjoy representation in both chambers of the Congress.

The

Amendment was proposed in 1960, and declared ratified in 1961 to enfranchise the
citizens of the District of Columbia without outlawing the congressional exclusive
authority over it, or naming it a state. It gave the Federal District what has turned
out to three electoral votes.83 Hence, representation in the Electoral College was
extended.
After the end of the Civil War, the Poll Tax was increasingly used as a means to
disfranchise the black population, among many other means. It was imposed in
Southern states to keep blacks from voting in federal elections. After the enactment
of the Fifteenth Amendment, States made of it a prerequisite of the exercise of voting
aiming at disfranchising blacks, who were mostly poor, and the poor whites, much
like the property qualifications required in the colonial period. In a decision on
Breedlove Vs Suttles in 1937, the Supreme Court ruled that the poll tax did not
violate the Fourteenth and the Fifteenth Amendments. A white male citizen of
Georgia claimed that to pay one dollar per year before all registration to vote was
fully discriminatory and denied his right of equal protection under the Fourteenth
Amendment. The Court unanimously upheld the tax and rejected the claim. The
elimination of such tax was a legacy of a congressional endeavor, to which the
previous decision led, dating back to 1939. Congress considered it as a means
whereby the proper exercise of a citizens franchise was impeded.
Congress, in a step forward to enfranchise all segments of the American
population, proposed the Amendment in 1962, after denying the bill several times
from 1939 onwards. It faced resistance of the Southern states which enacted the poll
tax. The Amendment was nonetheless ratified in 1964. It declares: the right of the
83

David A. Crockett, Dodging the Bullet: Election Mechanics and the Problem of the Twenty-third
Amendment, (American Political Science Association, 2003, in http://www.jstor.org.)

51

Chapter One
United States to vote in any primary or other election for President and VicePresident, or for Senator or Representatives in Congress, shall not be denied or
abridged by the United States or any State by failure to pay any poll tax or other
tax. It banned taxes as being requirements for vote. Still the Amendment did not
include the local elections within its scope. By the time of its ratification, there were
five States that did not remove the poll tax which witnessed continuous validity as a
qualification for the participation in the election. In Harman v. Forssenius (1965), the
Supreme Court ruled that the statute enacted by Virginia, which did not remove the
poll tax unless the voter would have a six months residency certificate prior to the
election, as unconstitutional. This decision overturned the Breedlove v. Suttles
(1937)
As the last step in enfranchising American people, Congress passed the Twentysixth Amendment. By the World War II, many men at the age of eighteen were
drafted in the military service, although they could not vote in the nation that they
were asked to defend. Subsequently, there was an interest in reducing the voting age
to eighteen. The Constitution did not include any provision restricting explicitly the
voting age. Yet the Fourteenth Amendment, in its second section, which reduced
representation in the Congress in case of disfranchising citizens of twenty-one years
of age, confined implicitly the voting right to male citizens of twenty-one years of
age. In the period between 1942 and 1971, there were more than one hundred and
fifty proposed resolutions to reduce the voting age to eighteen.84 Yet none of these
enjoyed a congressional seconder. Nevertheless, the importance of the passage of a
constitutional amendment to reduce the voting age was increasingly felt during the
Vietnam War. Consequently, Congress held hearings on the issue in 1986 and 1970.
Senator Edward Kennedy suggested lowering the voting age by a statute. Chief
Justice William Rehnquist viewed, however, that this could not be accomplished
unless through a constitutional amendment.
Prior to the passage of the Twenty-sixth Amendment, states did not have the same
voting age limits. While Georgia, for instance, lowered the voting age to eighteen in
1943, there were three states lowering it to nineteen, and three others setting it at
twenty, and the rest at twenty-one. The repeal of the voting age provision led Senator
Jennings Randolph to reintroduce the eighteen-year-old vote as an amendment. The

84

Op. Cit., p. 480.

52

Chapter One
aforementioned amendment was ratified in March 1971 declaring that the right of
the citizens of the United States, who are eighteen years of age or older, to vote shall
not be denied or abridged by the United States or by any State on account of age.
By now, all Americans could cast votes for President and Vice-President. Still
Americans were dissatisfied inasmuch as the selection of Senators did not pass
through a popular election. In response to this, the Seventeenth Amendment was
ratified in 1913 to provide direct election of Senators by the people after being
formerly chosen by the state legislature.
To examine the extent to whether these Amendments, which reflected the ongoing
struggle to establish and then to expand the practice of democracy, were put into
practice or were mere words, the work resorts to some Supreme Court decisions,
which either denied, interpreted them or served as catalysts to implement and/or
reaffirm them.

53

Chapter One
Conclusion:

The newly discovered land was viewed both as an abundant source of wealth and
as an asylum for different European peoples. Great Britain had been the chief source
of immigrants. Whatever might be their goal, it required certain amount of
independence from the King and Parliament. As a result, a spirit of democracy
emerged in the colonies seeking driving out the Kings meddling in their everyday
affairs. At their early beginnings, settlements were neither easily founded nor well
organized and maintained. Hence, an important need for self organization or else
self- government was promptly raised. Colonies local affairs were discussed upon in
towns meetings and representative assemblies the members of which were elected by
the inhabitants therein.

Other social contracts and charters designed the way

whereby colonists could manage their own affairs. To be eligible, however, to attend
the meetings or to vote for ones representatives, one should answer to the property
qualifications. Only white adult males who owned properties could vote for their
representatives. Still the embryonic democracy, which burst in the colonies as means
to overcome problems of governance, incorporated within the colonial charters and
then within the state constitutions, is incontrovertible.
The American Constitution with its Preamble which starts with We the People
designs the institutions thought to promote the practice of democracy in the United
States relying on basic constitutional principles such as Federalism, the separation of
powers and the checks and balances policies. Still, the Constitution reflected the
insights of the Founding Era. Thence, it required several formal changes to meet the
exigencies of each era. Those alterations would permit its adjustment for the end of
avoiding passing through the implications of drafting constitutions anew every now
and then. Since its ratification, the American Constitution has been amended twentyseven times. Most of these Amendments contributed in the full enfranchisement of
all segments of the American population. All the same, extensive judicial
interpretation, stimulation and implementation of these laws proved, throughout the
history of the United States, to be badly required.

54