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Birth of the U.S.

Constitution
Dave Roland
Director of Litigation
January 27, 2012

The American Question:


Are human societies really capable
of establishing good government through
reflection and choice, or are we forever
destined to have our governments
determined by accident and force?
- Federalist No. 1

The Colonies Pre-Revolution

Articles of Confederation
New nation functioned as a strong alliance
of states, each of which retained its
sovereignty, freedom, and independence.
Article II
National government consisted solely of a
unicameral Congress no executive or
judicial branches.

Articles of Confederation
States were represented by up to seven delegates,
but each state only got one vote.
Congress was tasked with:
Collective foreign policy and defense
Arbitrating disputes among the states
Facilitating interstate commerce
Legislating for the territories
Coining, printing, borrowing money
Was not empowered to tax the states

Articles of Confederation
Most actions required approval of nine states
Engaging in war
Entering into treaties and alliances
Coining or regulating the value of money
Borrowing money
Appropriating money
Raising military forces, appointing commander-inchief

Articles of Confederation
States under the Articles:
Retained sovereignty over most matters
Appointed and controlled pay of delegates
Legislatures could instruct delegations how to
vote
Delegates could be recalled at will

Articles of Confederation
States eventually began to demonstrate
disregard for Confederation Congress
Ignored Congressional treatiesincluding the
Treaty of Paris
Waging war with Indians and building their
own naval forces
Failing to send delegates to Congress
Refusing to respond to Congressional requests
for funding

Shays Rebellion
After the Revolution, debt was a major problem
for individuals and governments alike
Congress and the states started to print paper
money, spurring raging inflation
Lenders began to demand payment in hard
currency
Debtors pushed legislators to require the
acceptance of paper money

Shays Rebellion
Some state governments caved, others refused to
violate lenders rights
In August 1786, Daniel Shays rallied an army of
hundreds in effort to prevent Massachusetts
courts from enforcing judgments against debtors
The rebellion was put down in February 1787,
but the incident spurred calls for strengthening
the Articles of Confederation

Constitutional Convention
Assembled in Philadelphia between May 27 and
September 17, 1787
Only authorized to propose amendments to the
Articles of Confederation
Proceedings were kept secret
70 delegates selected, only 55 attended and only
39 signed the finished product

Tensions Underlying Convention


What would be best governmental structure?
Fear of tyranny v. Fear of disintigration
Populous states v. Small states
Slave states v. Free states
Original states v. Prospective states
Federal executive?

The Conventions Results

Preamble
Article I Legislative Branch
Article II Executive Branch
Article III Judicial Branch
Article IV The States
Article V Amendments
Article VI Debt, Supremacy, Oaths
Article VII Ratification

Legislative Branch
House of Representatives
Popularly elected
Two-year terms
Seats apportioned according to population

Senate
Chose by state legislatures
Six-year terms
Two senators for each state

Legislative Branch
Legislation
Majority vote in each house required
Subject to Presidential veto, but two-thirds of each
house can override veto

General powers
Taxation to pay debts and provide for common
defense and general welfare
Borrow money
Regulate commerce with foreign nations, among the
several states, and with Indian tribes

Legislative Branch
General powers (contd)
Establish uniform rule of naturalization
Establish uniform bankruptcy laws
Coin money and regulate its value
Fix standard weights and measures
Provide for punishment for counterfeiting
Establish post office and post roads
Create copyright and patent protections

Legislative Branch
General powers (contd)
Create courts subordinate to the Supreme Court
Govern maritime law
Declare war, raise and support armies, provide and
maintain a Navy
Provide for calling out the militia to execute laws,
suppress insurrections and repel invasions
Govern the District of Columbia

Legislative Branch
General powers (contd)
Dispose of and make all needful rules and
regulations for territories of the United States
Make all laws necessary and proper to
accomplish the above tasks

Legislative Branch
Limitations on Congress
Slave trade could not be prohibited until 1808
May only suspend habeas corpus in cases of
rebellion or invasion
No bills of attainder or ex post facto laws
Taxes must be in proportion to states
population, not based on relative wealth or the
value of property

Legislative Branch
Limitations on Congress
Cannot tax exports from states
Cannot establish favoritism by directing or
restricting commerce to the ports of one state
or another
Cannot grant titles of nobility (and no
government official could accept such titles
conferred by another nation)

Executive Branch
President
Chief Executive
Chosen by electors selected specially for the purpose
Four-year terms

Responsibilities

Commander-in-Chief
Power to grant reprieves or pardons
Make treaties
Appoint ambassadors, judges, other officials

Executive Branch
Responsibilities (contd)
Give Congress report on state of the union
Receive ambassadors and other public
ministers from other nations
See to the faithful execution of the laws
Commission officers of the United States

Executive Branch
Vice-President
Second-highest vote-getter in presidential
election
Four-year terms
President of the Senate
Assumes presidency if the President dies,
resigns, or becomes incapacitated

Judicial Branch
Supreme Court
Justices appointed by President
Life tenure (during good behavior)

Inferior courts to be established by


Congress

Judicial Branch
Oversee all cases:
In law and equity arising under the
constitution, laws, and treaties of the U.S.
Involving ambassadors and other public
ministers
Of admiralty and maritime jurisdiction
In which the U.S. is a party
Between two or more states
Between a state and a citizen of another state

Judicial Branch
Oversee all cases:
Between citizens of different states
Between citizens of the same state claiming lands under grants
of different states
Between a state, or the citizens thereof, and foreign states,
citizens, or subjects

Requirements:
Criminal cases to be tried by jury in state where crime
committed
Treason defined and prosecution limited

The States
Obligations:
Must give full faith and credit to public acts,
records, and judicial proceedings of other states
Citizens of each state are entitled to privileges
and immunities of citizens in the several states
States must extradite fugitives charged with
felony back to state with jurisdiction over crime
States must return runaway slaves to owners

The States
Limitations:
Cannot enter into treaty, alliance or
confederation
Cannot coin money or issue bills of credit
Cannot establish anything as legal tender
except gold and silver coin
Cannot pass bills of attainder, ex post facto
laws, or laws impairing the obligation of
contract

The States
Limitations:
Cannot tax imports or exports beyond what is
necessary for administrative costs
Cannot keep troops or ships of war in time of
peace
Cannot enter into any compact with another
state or with foreign powers or engage in war,
unless actually invaded

The States
Requirements to become a state:
Cannot be formed from territory of existing
state, nor from the junction of two or more
states or parts of states, unless with the
consent of the legislatures of the states
involved and Congress
Must provide a republican form of
government

Amendments
Methods of amending the Constitution
Two-thirds of each house of Congress could
approve an amendment and send it to states
for ratification
Two-thirds of state legislatures could demand
a convention to consider new amendments
Amendments effective when three-fourths of
the states ratify them
No amendment can deprive a state of its
Senate seats

Debts, Supremacy, Oaths


U.S. government will assume all debts of the
Confederation Congress
Constitution, laws, and treaties of the U.S. are
supreme law of the land
Federal and state officials must take oath
pledging to support Constitution
No religious tests permitted

Ratification
Nine states must agree to be bound by
the Constitution before it would
become effective
Constitution would only be binding
on states that ratified it

Unanswered Questions
What role (if any) should political parties play in
the new system?
Where states interests conflict with federal
government, who wins?
To what extent do states retain or sacrifice
sovereignty?
What about slavery?

National Debate over Ratification


Choosing Sides: Federalists and AntiFederalists
PubliusAlexander Hamilton, James
Madison, and John Jay
CatoNew York Governor George Clinton
BrutusJustice Robert Yates
George Mason
Patrick Henry

National Debate over Ratification


Major arguments
What is the primary goal of government?
Is stronger central government necessary?
Can stronger central government be trusted?
Does geography render a free American
republic impractical?

The States Decide


Delaware, December 7, 1787 (30-0)
Pennsylvania, December 12, 1787 (46-23)
New Jersey, December 18, 1787 (39-0)
Georgia, January 2, 1788 (26-0)
Connecticut, January 9, 1788 (128-40)
Massachusetts, February 6, 1788 (187-166; demanded amendments)
Maryland, April 26, 1788 (63-11)

The States Decide


South Carolina, May 23, 1788 (149-73)
New Hampshire, June 21, 1788 (57-47; demanded amendments)
Virginia, June 25, 1788 (89-79; demanded amendments)
New York, July 26, 1788 (30-27; demanded amendments)
North Carolina, November 21, 1789 (195-77; previously voted down
ratification 184-83)
Rhode Island, May 29, 1790 (34-32; previously voted down
ratification 2,708-237)

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