CQ Encyclopedia of American Government : The Evolving Constitution

From CQ's guide to the U.S. Constitution. Washington: CQ Press. Retrieved August 19, 2005, from CQ Electronic Library, CQ Encyclopedia of American Government


Constitutions, including that of the United States, are a special kind of law that set down basic rules for governments and the people who run them. A constitution grants powers—some of them explicitly spelled out and others implied or assumed—to public officials. A constitution also prohibits officials from conduct or actions that are considered harmful to citizens of a nation or a state. In addition, a constitution distributes powers between different parts of a government, often so that one part is not more powerful than any other. People who live in a nation or state with a constitution, whether they are citizens going about their daily business or individuals who choose to help run the government, live under what is called constitutional government.

A constitution, then, is a set of laws that people accept as fundamental and basic to the structure and operation of their government. The most successful constitutions are not long or overly detailed; rather, they set out the broad powers (and limitations on power) of public officials and leave the details to elected persons to complete. And because they are accepted as basic and long-lasting, the best constitutions are seldom changed and then only for the most convincing reasons.

It might seem, as a result, that writing the Constitution of the United States would have been a fairly easy job. In fact, it was anything but easy. It was done by fifty-five men (no women participated) who met in Philadelphia in May 1787 to solve some problems experienced by the new nation that had emerged after winning its independence from Great Britain. In fact, the Philadelphia gathering, known as the Constitutional Convention, started with the modest goal of just "fixing" the existing form of government. Understanding what happened requires understanding what had been going on in the new country before then.

The people who lived in what was to become the United States of America did not, until around the 1770s, think of themselves as "Americans," but rather as English citizens who had come to live in a place away from England but still a part of that nation. These were the people of the colonies living in the New World. Their heritage was English and that heritage, so far as it pertained to governments, began centuries earlier. The development of the concept of constitutional government went back in England as early as 1215, when King John was forced by his most important subjects to sign a document known as the Magna Carta (the great Charter). The Magna Carta put certain limits on the king's power, including his authority to raise royal revenue through taxation without the consent of a council of noblemen from throughout his realm.

This event is cited as one of the most important in the evolution to constitutional government; over the next several hundred years supreme power in England was gradually transferred from the monarch to the people, acting through representatives. The council King John faced was the forerunner of the British Parliament. During its evolution, the English obtained other rights that protected them against arbitrary and excessive exercise of power by the king. These traditions and expectations traveled with the people who moved to the New World and were incorporated into the governments of the thirteen original colonies. However, the colonies had no voice, no representatives, in Parliament.

The Seeds of Rebellion

The people living in the American colonies began to develop a greater national identity with the end of the French and Indian War in 1763. The war, part of a world conflict between the great powers of the day, particularly England and France, settled the destiny of Canada, which would become part of the British Empire, and left England in control of virtually all the land east of the Mississippi River.

But the victory did not come cheap. It doubled the national debt of England and quadrupled the prospective cost of administering the greatly enlarged empire in America. The British expected the colonies to help pay the costs of the war as well as the increasing expenses of running the colonies. To do this, the British government began imposing various taxes and other laws on the colonies that were damaging to commercial activity and appeared to the colonists to violate the rights from their English heritage. Among the taxes and laws were these.

  • A 1764 revenue act placing new duties on colonial imports such as wine, linen, and silk, and increasing the list of colonial goods that could be sold only to England.

  • The Quartering Act of 1765 requiring colonies to help support the troops England would station in America, including supplying the troops with barracks or other quarters and with some of their provisions.

  • The Stamp Act of 1765 imposing a tax on legal documents, newspapers, almanacs, and other items.

None of these measures sat well with the Americans, but the Stamp Act was particularly onerous because it was the first direct tax ever laid on the colonies by Parliament. Americans felt they could be taxed only by their own assemblies and that the Stamp Act, which was taxation without representation, violated their rights. The Stamp Act was repealed in 1766 when it became clear that it could not be enforced effectively in the face of increasingly hostile resistance from the colonies. But it was followed by other laws from parliament in a similar vein that further poisoned the atmosphere.

Relations worsened in 1773 in an event now famous as the Boston Tea Party. England allowed the East India Company, a commercial undertaking, to dump a large quantity of surplus tea in the colonies, a move that threatened to harm American traders. Although many merchants favored simply boycotting these shipments, radicals urged more direct action. On December 16, 1773, a group disguised as Indians boarded three tea ships and dumped their cargoes into Boston Harbor. England struck back with a number of laws, which became known as the Intolerable Acts in the colonies. They included closing the Boston port until the cost of the lost tea was repaid, revising the charter that set up the Massachusetts colony to give England more control, and transferring to England the trials of royal officers charged with murder. In addition, another law gave the French-Canadian—and Catholic—royal province of Quebec all of the land west of the Appalachians lying north of the Ohio River and east of the Mississippi, an act that alienated much of Protestant America. The Quebec Act of 1774 was seen as another punitive measure by most colonists and helped muster broad support for a "general congress of all the colonies" proposed by the Virginia and Massachusetts assemblies.

First Continental Congress

The call for a "general congress" was well received: only Georgia did not send delegates. The First Continental Congress met in Philadelphia on September 5, 1774. The Congress adopted a Declaration of Rights and Grievances against all British acts to which "Americans cannot submit" and approved commercial boycotts of many goods traded with England. The delegates adjourned in late October, agreeing to meet the following May if necessary. In England King George III declared the colonies were "now in a state of rebellion."

Events moved inexorably the following spring toward declaring independence, which led to war. Massachusetts was a center of the most vocal resistance to England. Rebels soon controlled all of the colony except Boston where the governor, Gen. Thomas Gage, was installed with five thousand troops.

On April 19, 1775, Gage sent one thousand of his soldiers to destroy the patriots' stores of ammunition in Lexington and Concord. They were met by Minutemen, and shooting broke out. British casualties were 247 dead and wounded before Gage's forces could get back to Boston. This encounter turned out to be the beginning of the Revolutionary War, although more than a year would pass before Americans were sufficiently united to declare their independence.

Second Continental Congress

When the Second Continental Congress met in Philadelphia on May 10, 1775, most delegates still hoped to avoid war with England. But faced with pleas for help from Massachusetts, the delegates agreed to raise an army and ask the colonies for funds to pay for it. George Washington, a delegate from Virginia, was made the Continental Army's commander in chief.

The delegates approved a petition to the king asking for a "happy and permanent reconciliation" between the colonies and England. Another declaration disavowed any desire for independence but resolved "to die free men rather than live slaves." The king was not pleased. In August he proclaimed a state of rebellion in the colonies, and England began hiring mercenaries in Germany and inciting the Iroquois Indians against the colonials.

Declaration of Independence

By the following summer, the Continental Congress was under increasing pressure from the most vocal radicals in the colonies to move to independence. In June 1776 a group of delegates was named to draft a declaration, but the actual writing fell largely to Thomas Jefferson. The Declaration of Independence, celebrated by Americans every year on July 4, was in large part a recitation of every grievance against English colonial policy that had emerged since 1763.

Its enduring quality, however, came from the Preamble as a statement of political philosophy with universal appeal.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The Declaration of Independence committed the colonies to wage a war that was already under way and would drag on for more than five years before England gave up the struggle.

New Colonial Governments

During the war provisional governments were set up in many colonies, patriots took control of provincial assemblies and conventions, and the royal governors and judges began to leave. A year after the signing of the Declaration of Independence, all but three of the colonies had written new constitutions and moved to establish new governments.

Although they varied in detail, all had similarities. All were written—Great Britain had no written constitution. All included or were accompanied by some kind of "Bill of Rights" to secure those English liberties that George III had violated, such as freedom of speech, press, and petition, and the rights of habeas corpus and trial by jury. All paid tribute to the idea of separation of powers between the legislative, executive, and judicial branches, although in every state the legislatures were far stronger than the executive. This reflected the colonists' fear of executive power that grew from their conflicts with the English Crown and the royal governors.

All the constitutions recognized the people as sovereign, but few entrusted them with much power. Most states adhered to pre-Revolutionary limits on suffrage. Ownership of some amount of property was generally required as a qualification to vote, and more usually was required to hold office.

These state constitutions became forerunners of the national Constitution that was to be created a little later. But before that could happen the colonies had to experience and test a different kind of organization for their new nation.

Articles of Confederation

The peace treaty was signed on September 3, 1783, exactly twenty years after the end of the French and Indian War. Once free of England, the colonies were little more than a handful of small—although growing—collections of pioneers facing serious challenges in a frontier land. At the same time in June 1776 that prominent patriots were calling for a Declaration of Independence, several also urged the drafting of a plan of confederation that would be sent to the colonies for consideration.

A plan was prepared by July 12, but it was not until more than a year later, November 15, 1777, that the Continental Congress adopted the Articles of Confederation and Perpetual Union. And it was not until five years later that enough of the states voted their approval for the Articles to go into effect.

The Articles reflected the dominant motive of Americans who were rebelling against British rule: to preserve their freedoms from the encroachments of centralized power. A strong federal government with wide powers was never an option. There was less agreement on other matters. Significant tensions developed over the relative standing of the thirteen states in the confederation. A central issue was whether the more populous states would have a larger say in the national government, an issue that was to remain vexing during drafting of the United States Constitution a few years later.

In the new government, there was no president and no court. Congress remained the sole organ of government; the states retained their equality, each having one vote; and of the specific powers delegated to Congress, the most important could not be exercised without the agreement of nine of the thirteen states. Moreover, Congress had no power to tax. The states were to provide funds to pay the costs, but Congress was not given the power to compel compliance. Amendments to the original Articles required unanimous approval of the states. One of the most serious weaknesses was the absence of power by the national government to regulate commerce among the states and with foreign nations.

These problems were compounded by major difficulties in the states following the Revolutionary War that threatened economic and political stability. Congress was powerless to resolve a postwar conflict between creditors and debtors that was aggravated by an economic depression and a shortage of currency. Most states had stopped issuing paper money and tried to pay off their war debts by raising taxes. In addition, merchants and other creditors began to demand that debtors repay private debts. Pressed on all sides, the debtors (mostly farmers) clamored for relief through state laws to put off the collection of debts and to provide cheap money.

In response, a number of states started issuing paper money again, but in Massachusetts, where the commercial class held power, the state refused and passed a program of high taxes. Cattle and land were seized for debts, debtors crowded the jails, and all petitions for relief were ignored.

Out of this came Shays's Rebellion of 1786, an uprising of distressed farmers in central Massachusetts led by Daniel Shays. Although the rebellion was put down quickly by the state militia, there was much sympathy for the rebels. Their leaders were treated leniently, and a newly elected legislature acted to meet some of their demands. More important, the rebellion aroused the fear of many Americans for the future, and in particular frightened the powerful commercial class of citizens who saw a looming threat to their wealth if economic issues were not resolved. Congress had been unable to give Massachusetts any help—further evidence of the weakness of the Confederation. Everyone was heading down a road toward a new government.

The state of the Union under the Articles of Confederation was a source of growing concern to leading Americans well before Shays's Rebellion shook the confidence of a wider public. In extensive correspondence as early as 1780, George Washington, John Jay, Thomas Jefferson, James Madison, James Monroe, and others expressed their fears that the Union could not survive the strains of internal dissension and external weakness without some strengthening of central authority.

How to achieve that goal was not yet clear. Opinions varied widely as to what type of new government would have sufficient power to meet the needs of a growing nation.

At Hamilton's urging the New York Assembly asked Congress in 1782 to call a general convention of the states to revise the Articles. Congress studied the proposal but did not reach any agreement. Then, Virginia and Maryland in 1785 worked out a plan to resolve conflicts between themselves over navigation and commercial regulations. Their agreement gave Madison the idea of calling a general meeting to solve commercial problems. In January 1786 the Virginia Assembly issued the call for a meeting in Annapolis in September.

Nine states named delegates to the Annapolis convention, but the dozen persons who assembled represented only five states. Rather that seek a commercial agreement from so small a group, Madison and Hamilton persuaded the delegates on September 14 to adopt a report that described the state of the Union as "delicate and critical." The report recommended that the states appoint commissioners to meet the next May in Philadelphia "to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union."

The proposal was deliberately vague because its backers knew there was still strong opposition in the colonies to giving the central government much more power. The Virginia Assembly, prodded by Madison and Washington, agreed in October to send delegates, and six other states took similar action. Congress the following February moved to retain control of the situation by passing a resolution endorsing the proposed convention for the purpose of reporting to it. Officially, therefore, the convention was to be no more than advisory to Congress.

That is not what happened. Soon after the Philadelphia convention opened, the delegates were asked to decide whether to try to patch up the Articles of Confederation or to ignore them and draw up a new plan of government. Congress, the state legislature, and many of the delegates expected the session in Philadelphia to do no more than draft proposals to revise the Articles in ways to strengthen the Confederation without altering the system of state sovereignty. But Madison and others who had worked to bring about the convention were convinced of the need for fundamental reform.

Writing the Constitution

The task began at the State House in Philadelphia May 25, 1787. George Washington was unanimously chosen president of the convention. In four months the delegates drafted a document known to the world today as the Constitution of the United States. But it did not come easily. Over a sweltering summer, the delegates debated fundamental principles of government organization. Out of this debate, in which the conflicts at times were so intense it was feared the convention itself would collapse, came a radical new form of government unknown to the world and which no person of the times would have thought possible even a decade earlier.

The Delegates

The convention was controversial from the beginning, with some Revolutionary leaders, fearful that the meeting would centralize power in the new nation, refusing to attend. Rhode Island did not even send delegates. Only fifty-five of the seventy-four delegates to the convention actually attended. But they were a distinguished group, spoken of today as the single greatest collection of political thinkers ever assembled. Virtually all were experienced in government: seven former governors, thirty-nine former members of the Continental Congress, and a number of others who helped write state constitutions only a few years earlier. They were mostly men of wealth and status, and they were relatively young, with an average age of forty-two. The most prominent were James Madison of Virginia, who had drafted that state's constitution; Alexander Hamilton of New York, the most outspoken advocate of a strong and far-reaching national government; George Washington of Virginia, whose prestige from the Revolutionary era was essential to the convention's credibility; Benjamin Franklin of Pennsylvania, the senior statesman of the times, whose experience and personal charm helped bring factions together (and at eighty-one the oldest delegate); James Wilson of Pennsylvania, who contributed much to the Constitution's articles on the presidency and executive branch; and Gouverneur Morris, also of Pennsylvania, who headed the committee on style that drafted much of the document's final language. One central figure of the times, Thomas Jefferson, was not there; he was in Europe serving as a diplomat.

The thinking of these men was shaped not only by their experience with the power of the British Crown but also by philosophers such as John Locke who believed in a natural law that entitled every person to life, liberty, and property, and that the role of government was to protect these rights. They were also the product of other strains of seventeenth-century thinking that distrusted human nature, which they believed was essentially self-serving and needed to be restrained. They had little faith in popular rule, but they also believed in popular sovereignty that made the people—not a king or any other authority figure or set of beliefs—the source of government authority.

Creating a new government that acknowledged and balanced these sometimes inconsistent beliefs between popular sovereignty and a human tendency toward destructive self-interest was a major challenge. The Constitution they wrote, and the government that was created under it, has proven a remarkable mixture of powers and limits on power that has survived and adapted to changing times for more than two centuries.

Virginia and New Jersey Plans

The convention delegates reached agreement on numerous issues with little difficulty. Within a week they agreed that the new government should have three parts—a national legislature, an executive, and a judiciary—and that the government's powers would be greater than those given under the Articles of Confederation. They accepted the principle of an elected legislature that would be bicameral—consisting of two chambers—and the executive would be one person who was elected (although initially it was thought that election would be by the state legislatures rather than the people generally).

Much of this structure was included in the Virginia Plan, a package of resolutions put forth by the advocates of a strong central government that would be unitary. That is, it would operate directly on the people and be independent of the states. It was to be a "national government" in contrast to the "merely federal" system that existed under the Articles and was found inadequate. Many understood a national government to mean a regime of potentially unlimited powers that would extinguish the independence of the states. Although the backers of the Virginia Plan wanted a strong central authority, they were proposing to create a system in which national and state governments would exercise dual sovereignty over the people within separate and prescribed fields. Such a dual system, unknown in 1787, was later recognized as one of the most remarkable creations of the Founders.

The biggest problem, however, arose from the Virginia Plan's provisions that both chambers of the national legislature be based on population. The smaller states saw this provision as a guarantee of domination by the most populous states, Virginia, Pennsylvania, New York, and Massachusetts. The small states responded with the New Jersey Plan, which retained the single chamber (unicameral) legislature that was in use under the Articles of Confederation. Other provisions also made the new government much more of a federal system than the nationalists thought necessary.

The delegates voted for the principle advocated by the nationalists: a new and more powerful central government that replaced, rather than merely reworked, the government of the Confederation. The big state/small state dispute was settled by the Connecticut compromise, also called the Great Compromise. This scheme called for a two-chamber national legislature. The House of Representatives would be based on population and elected by the people, and the Senate would have two members from each state who were elected by state legislatures.

Structure and Power of Government

There was little if any dispute in the Philadelphia convention that the new national government should consist of three branches—legislative, executive, and judicial—and this in turn implied broad acceptance of the principle of separation of powers.

Congress

The Virginia Plan provided for two houses of the national legislature, as was the practice in the English Parliament and in most of the colonial governments and ten of the thirteen states. Thus, the two-house practice was well known in America, even though it was not used in either the Continental Congress or the Congress of the Articles of Confederation, which were unicameral.

The Constitutional Convention continued to speak of the "Legislature of the United States" and its "first branch" and "second branch" until those terms were changed in early August 1787 to the terms used today: Congress, the House of Representatives, and the Senate. The term Congress was taken from the Articles of Confederation, and the other terms were widely used in the state legislatures.

For the House, the delegates accepted the premise of the nationalists that the new government rest on the consent of the people rather than on the state legislatures. Delegates fearful of popular democracy argued for the latter, but their proposal was defeated twice in favor of a popular election for members of the House.

The Virginia Plan proposed that the House elect members to the Senate from persons nominated by the state legislatures, but this idea drew little support because it made the Senate subservient to the House. Instead, the delegates decided in June that state legislatures would elect their state's members to the Senate. This decision stood until 1913 when the Constitution was amended to provide for selection of senators by direct popular election.

The basis of representation also was a controversial matter, which was rooted in the slavery issue. The convention accepted the basic premise that representation in the House would be based on population, although the Virginia Plan provided for representation in proportion to a state's wealth or free population. The South wanted slaves to be counted for purpose of determining the number of seats given to each state in the House, but not counted in apportioning direct taxes (taxes paid directly to the government by individual citizens) among the states. Northern state delegates believed just the opposite. The result was the Three-fifths Compromise under which a slave was counted as three-fifths of a person for both purposes. The concept of wealth in deciding representation was dropped.

Terms of office were set at two years for House members and six for senators, with one-third of that membership turning over every two years. Qualification for office was set at a minimum age of thirty for senators and twenty-five for representatives. The individual had to be a United States citizen (for seven years for the House and nine for the Senate) and "an Inhabitant" of the state to be represented when selected.

Powers of Congress

The advocates of a strong national government, such as Hamilton and Madison, came to the convention with the expectation of creating a fundamentally new institution that would remedy the shortcomings of the Articles of Confederation. High on the agenda were the powers that the new government would possess, with a particular focus on the legislative branch—Congress—that was at the center of the thinking and experience of the delegates.

The nationalists with their Virginia Plan came prepared with a broad grant of power. This language, which was quite general and sweeping, was debated carefully over the summer until the delegates settled on a list of enumerated powers for Congress. The delegates also included a list of powers to be denied to Congress and to the states. All of these eventually became part of Article I of the Constitution (Sections 8, 9, and 10). Following are the major provisions found in those sections:

Power to Tax

The delegates agreed without much dispute that Congress needed the power to tax to support the new government. The final language provided that Congress "shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States." The inclusion of the words "general welfare" has played an important role in subsequent debate, particularly in the modern period, about the purpose of the Founders. Advocates of proactive government have claimed this was a clear grant of additional and unspecified powers. Proponents of limited government argue that it was merely to clarify that taxation was not just for public debt repayment, but could not be taken as a creating authority beyond those specifically listed in the Constitution.

Delegates had to resolve which chamber—the Senate or House, or both—had authority over bills that raised revenue (taxes) or spent money (appropriations). The sentiment for some time was that this authority should rest with the House, which was common in the states, and not be changed by the Senate, even though a few states did allow that. The final language gave the House sole authority to originate tax bills but allowed the Senate to amend them. The distinction was not explicitly extended to cover appropriation bills. Nevertheless, the House over the years assumed, based on the debate in the convention, that it had the sole power to originate spending legislation, and this prerogative rests with the House to the present day.

Power to Regulate Commerce

Trade among the states and with other countries was severely handicapped under the Confederation by a lack of uniformity in duties and commercial regulation. States often discriminated against products of other states. The delegates were eager to remedy the problems, but regional conflict stood in the way. It was clear that southern states would not accept a constitution that did not protect their vested interest in slave labor and agricultural exports from possible burdensome restrictions that a Congress controlled by northerners might impose.

As a result, the convention included language giving Congress the power to regulate commerce with foreign nations and among the states but with two limitations: a ban on taxing exports and a prohibition on efforts to tax or outlaw the slave trade. The latter was particularly controversial and was modified to last for twenty years rather then indefinitely. In addition, Congress was allowed to levy a duty on slaves, as on other imports, up to $10 a person.

War and Treaty Power

The Articles of Confederation gave Congress the exclusive right and power of deciding issues of peace and war. The delegates proposed giving Congress as a whole the power to make war and the Senate alone the power to approve treaties. The latter was later changed to divide the power between the Senate and the president. The issue of war was more difficult. Some delegates thought the war power should be only with the president, while others favored giving it to the Senate. When neither prevailed, the delegates adopted language to give Congress the power "to declare war." The word "declare" had been substituted for "make" in order to leave the president free to repel a sudden attack. But in the twentieth century this issue became highly controversial as some presidents used other authority they believed they had to commit the nation to wars even though Congress had not declared war. Congress has passed legislation on the power to make war, but the issue has never been fully resolved.

Impeachment

Early in the convention delegates agreed that the president should be removable on impeachment (accusation) and conviction "of malpractice or neglect of duty." How this was to be done depended on who would select the president. At first Congress was to select the president, which made delegates leery of also allowing Congress to remove him. When choosing the president in normal circumstances was given to electors selected in the states (the electoral college), the delegates came up with the formula: impeachment by the House and trial and conviction by a two-thirds majority in the Senate. The causes for impeachment and removal would be "treason, bribery, or other high crimes and misdemeanors." Delegates also extended the impeachment provision to the vice president and other civil officers.

Express and Implied Powers

The delegates wrote into the Constitution many specific powers in addition to those most important ones already noted, including coining money, establishing a military, setting up post offices, and creating lower federal courts. Such powers are known as delegated, or express, powers.

But the Constitution and a very important early ruling by the Supreme Court added greatly to these powers. The delegates provided, in Article I, that "the Congress shall have the Power ... to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested in this Constitution in the Government of the United States." This has come to be called the Necessary and Proper Clause or the Elastic Clause.

The conflicts evident during the drafting of the Constitution continued in the years after it was ratified. Advocates of a strong national government wanted to read these powers broadly, and supporters of a limited government favored rights of the states. They became known, respectively, as Federalists and Antifederalists and became the centers of political activity in the early years of the nation.

The Supreme Court's influence on this debate came in one of its most important early decisions, made in 1819, in a case called McCulloch v. Maryland in which the justices supported the cause of the Federalists. The case involved the United States Bank, created by Congress. Maryland said no such power existed in the Constitution and urged a strict interpretation of the document. In the decision by Chief Justice John Marshall, a staunch Federalist, the Court said it was reasonable that Congress would consider it "necessary and proper" to charter a national bank to carry out its various delegated fiscal powers. With that argument, Marshall created the doctrine of implied powers, allowing the government powers that can be reasonably implied from its delegated powers. Over the decades that followed, the McCulloch decision was the legal underpinning for extensions of powers in the national government, which reached their heights with the New Deal in the 1930s when the nation was in the depths of the Great Depression. Virtually all of modern legislation dealing with subjects the Founders never dreamed of—farm supports, housing subsidies, crime control, and thousands more—is rooted in the implied power doctrine from the earliest days.

In addition to express and implied powers, the government also operates under the doctrine, mainly in foreign affairs, of inherent powers, which usually is defined to mean powers not dependent directly on constitutional grants of authority but from the actual existence of the government. Examples include authority to occupy territory, make treaties, and conduct foreign relations. The Court has said these powers would exist regardless of the Constitution's wording or absence of wording on the subject because they are powers all national governments possess under international law.

Executive Branch and the President

The issue of the powers and structure of the executive created great difficulty in the convention because there was little in the nation's short life to use as a model. The office did not exist under the Articles of Confederation, which placed the executive function in Congress. In addition, the delegates and their contemporaries feared executive authority because of their long battle with the English Crown and its royal delegates in the colonies.

Qualifications, Election

The convention delegates decided to apply simple qualifications for a person holding the office, much as they had done for those serving in Congress. A president had to be thirty-five years of age, a natural-born citizen, and an inhabitant of the United States for fourteen years. The same qualifications were applied to the vice president.

The method of election and the term of office of the executive were closely related issues. If Congress were to choose the president, most delegates thought he should have a long term and be ineligible for reappointment. But if another selection method were used, then a shorter term and reeligibility was seen as the better arrangement. Thus the method of election became crucial.

Different approaches were considered. One scheme was to have the people choose the electors, who then would choose the president. The aristocrats at the convention, uneasy about popular democracy, thought—in the words of one—the people "too little informed of personal characters" to choose electors. Later, however, this idea gained support among the delegates and was finally approved in modified form that had the electors selected by the states with each state having the same number of electors as it had senators and representatives. The person receiving the majority of the electoral votes would become president and the one with the next largest vote vice president. The last part was changed by constitutional amendment in 1804 to prevent the election of a president from one party and a vice president from another. The plan also provided for a four-year term with no restriction as to reelection. The limit on reelection also was changed by constitutional amendment, in 1951, to limit a person to tow terms.

Presidential Powers

Initially, the convention conferred only three powers on the president; "to carry into effect the National Laws," to appoint to offices in cases not otherwise provided for, and to veto bills. Additional powers were added, mostly taken from state constitutions, including a directive to report "on the State of the Union" from time to time and to recommend legislation, making the president the head of the army and navy, to convene and adjourn Congress under certain circumstances, and to see "that the Laws be faithfully executed."

The power to appoint also prompted much debate with many delegates wanting at least some of this authority vested in Congress. But by September the delegates approved giving the president power to appoint ambassadors and other public ministers, justices of the Supreme Court, and all other officers of the United States "by and with the consent of the Senate." With further modifications, these powers were approved.

Many delegates wanted the power to make treaties to be only in the Senate but that drew opposition. Madison urged giving the power to the president, representing the whole people. This idea won support but was qualified by the requirement that treaties by subject to the advice and consent of two-thirds of senators present on a vote.

The Judiciary

Article III of the Constitution relating to "the judicial power of the United States," was developed in the Constitution with relative ease. The Virginia Plan called for "one or more supreme tribunals" and inferior tribunals (lower courts) to be appointed by the national legislature to try all cases involving crimes at sea, foreigners and citizens of different states, "collection of the national revenue," impeachments, and "questions which may involve the national peace and harmony." The convention went on to spell out the jurisdiction of these courts in greater detail, but the only basic changes made in the plan were to vest initially in the Senate and then in the presidency the power to appoint judges, and to transfer the trial of impeachments from the Supreme Court to the Senate.

Article III did not explicitly authorize the Court to pass on the constitutionality of acts of Congress, but the convention clearly anticipated the exercise of that power as one of the acknowledged functions of the courts. Several delegates noted that the state courts had "set aside" laws in conflict with the state constitutions. The convention debated at great length, and rejected four times a proposal to link the Court with the president in the veto power. One delegate favored it because "laws may be unjust, may be unwise, may be dangerous, may be destructive, and yet may not be so unconstitutional as to justify the judges in refusing to give them effect." Another agreed that the Court "could declare an unconstitutional law void." This power was given reality by Supreme Court decisions, beginning with the landmark case Marbury v. Madison in 1803.

The role of the judiciary in determining the constitutionality of the laws of the land also was implicit in the provision, incorporated in Article IV, that asserted that the Constitution, the laws, and the treaties of the United States "shall be the supreme Law of the Land." The Supreme Clause was reinforced by a further provision in Article IV stating that all members of Congress and of the state legislatures, as well as all executive and judicial officers of the national and state governments, "shall be bound by Oath or Affirmation to support this Constitution."

Amending the Constitution

The Founders agreed on the need for an effective method to amend the Constitution. A major reason for calling the Constitutional Convention had been that the method for amending the Articles of Confederation—requiring unanimous consent of the states—had proved impractical. But the delegates also wanted to strike a balance between preserving their carefully crafted document with the need to alter the provisions under compelling circumstances.

Delegates at first supported a proposal that two-thirds of the states have the sole power to initiate amendments by petitioning Congress to call a convention. Later, near the end of the convention, Article V was altered to allow Congress to propose amendments—the only method that has been used in more that two hundred years—and requiring that Congress "shall" call a convention for the purpose of proposing amendments when requested to do so by two-thirds of the states. The latter approach, although never used, has always frightened advocates of a stable Constitution that is difficult to change; they are concerned that a runaway convention prompted by the states could make far-reaching changes in the document. But in either case, the delegates agreed amendments would take effect when approved by three-fourths of the states.

Ratification

The delegates who met in the Constitutional Convention in 1787 went far beyond the purpose for which the gathering had been called, which was simply to revise the Articles of Confederation. Instead, they discarded that system of government and created a new one patterned on their experience in the state and the Confederation but unlike anything previously known. It was a product, and a victory, of the nationalists who were determined to provide the young United States with a strong national government that could deal, they believed, with the challenges that the Confederation was powerless to handle. They were not about to let their work be scuttled in the state legislatures, which they feared were hostile to the new Constitution.

The advocates of the Constitution, who became known as Federalists, set out aggressively to sell their document. The first step was to be sure that approval was not left to the state legislatures. They insisted that the Constitution be considered by "the supreme authority of the people themselves," as Madison put it. The Federalists wanted special conventions elected for the purpose of ratifying the new Constitution. Conventions would be more representative than the legislatures, they contended, because the legislatures would lose significant power under the new document. Accordingly, the Philadelphia convention provided that the Constitution should be submitted to popularly elected state conventions. The delegates also decided that the new Constitution would go into effect when approved by the conventions of nine of the thirteen states.

The convention adjourned on September 17, 1787. The Congress of the Confederation submitted the Constitution to the states for consideration ten days later, starting the process that was to last until the following summer for formal ratification and until 1790 for ratification by the last of the original thirteen states.

During this period an intense and often bitter—and sometimes violent—battle was waged between the Federalists and the Antifederalists, who opposed ratification. The divisions between these groups had been developing for years but were given focus by the issue of creating a new government under a new Constitution. Although there were numerous exceptions, the division tended to reflect long-standing differences among Americans between commercial and agrarian interests, creditors and debtors, men of great or little property, tidewater planters and the small farmers of the interior.

Two historical events accompanied the ratification process. One was the drafting of the Bill of Rights—a bulwark of protection for the rights of Americans. The other was publication of a series of essays by supporters of ratification called The Federalist.

The absence of a bill of rights in the Constitution was a major sore point for many people, particularly the Antifederalists who feared that a powerful national government would infringe and perhaps even extinguish the individual freedoms of Americans who had struggled so hard to win in the revolution against England. Federalists did not consider this an issue because, they claimed, the national government would be limited to exercising the powers granted to it under the Constitution. Nevertheless, they did not vigorously argue the point and agreed to incorporate a bill of rights as the first amendments to the document following ratification.

These ten amendments were written to protect some of the most fundamental freedoms enjoyed by the people of the new nation, including freedom of speech, press, and religion; freedom from "unreasonable" searches and seizures by the government; the right to a speedy and public trial; and the right not to be deprived of "life, liberty, or property, without due process of law." All of these protections were aimed at the new national government, but over the decades that followed the Supreme Court slowly but steadily made some (but not all) of them applicable, through a process called incorporation, to state governments as well. The Bill of Rights was ratified on December 15, 1791.

In the meantime, however, the battle raged in the states over ratification of the Constitution itself. All of the newspapers of the day published extensive correspondence on the virtues and vices of the new plan of government. The fullest and strongest case for the Constitution was presented in a series of letters written by Madison, Hamilton, and John Jay under the pen name "Publius." Seventy-seven of the letters were published in New York City newspapers between October 27, 1787, and April 4, 1788, and in book form, along with eight additional letters, as The Federalist on May 28, 1788. These letters probably had only a small influence on ratification, but The Federalist came to be regarded as the classic exposition of the Constitution as well as one of the most important works on political theory ever written.

The Delaware convention on December 7, 1787, unanimously ratified the Constitution, the first state to do so. Pennsylvania came next, on December 12. (As an example of the heightened feelings of the day, Pennsylvania Federalists earlier had tried to move to call a convention for ratification before the new document had even been officially submitted to the states. On that move, nineteen Antifederalists withdrew from the Pennsylvania Assembly, depriving it of a quorum to act, until a mob seized two of them and dragged them back.) Following Pennsylvania other states fell into line until New Hampshire, on June 21, 1788, became the ninth state to ratify. This met the requirement for approval by nine states, but it was clear that without Virginia and New York the Constitution would stand on shaky ground. On June 25, in a vigorous battle led by Madison, Virginia ratified the document 89-79. New York ratified on July 26 by an even narrower margin, 30-27, after Hamilton and Jay threatened that without approval New York City would secede and join the Union as a separate state. The other two states of the original thirteen, North Carolina and Rhode Island, ratified in November 1789 and May 1790, respectively.

The government was on its way. The Congress of the Confederation, in accordance with the request of the Constitutional Convention, on September 13, 1788, designated New York City as the capital. It selected the first Wednesday of January 1789 as the day for choosing presidential electors, the first Wednesday of February for the meeting of electors, and the first Wednesday of March for the opening session of the first Congress under the New Constitution.

The Evolving Constitution

The work produced by the Founders more than two hundred years ago has remained remarkably stable. The Constitution had been amended only twenty-seven times as of the end of 1994, and many proposed amendments have fallen by the wayside. The heirs of the Founders have taken seriously the belief that a constitution should be a basic document, not overly long, enunciating simple but lasting principles that can adapt to changing circumstances. Many state constitutions go in the other direction, running to tens of thousands of words (the average is about 27,000 words compared to about 8,700 in the U.S. Constitution) that often are amended hundreds of times. These constitutions have more the flavor of statutory law—important, but tied to the times and easily changed.

But the U.S. Constitution is not unchanging. As previously noted, the Bill of Rights, which has played so important a role in protecting basic liberties, was added immediately as the first ten amendments as part of the effort to obtain ratification of the new Constitution. Later amendments abolished slavery, granted citizenship to all persons born or naturalized in the United States, authorized the income tax, limited presidents to two terms of office, guaranteed voting rights for all Americans (both for women, who had been denied the franchise into the twentieth century, and for blacks, who had been denied the franchise in many areas, particularly the South), provided for direct election of senators, and made other important changes.

Most of the amendments have been about fundamental rights of Americans on which there was considerable agreement or that addressed matters of the highest importance. Many other proposed amendments, particularly those that concern social or cultural matters that inflame factions at certain times, have been sidetracked before being added to the Constitution. One was not: prohibition. The Eighteenth Amendment authorized Congress to prohibit the manufacture, sale, and transportation of liquor. It was approved in 1919, but repealed in 1933 after little more than a decade of failed efforts to control distribution and consumption of liquor. Although by no means the only part of the Constitution repealed, prohibition is perhaps the most conspicuous as a failed experiment to use the Constitution to alter personal conduct.

The Changing Constitution

Formal amendment of the Constitution is the method of changing the document that is generally accepted as most desirable because it reflects the considered judgment by a wide array of popularly elected officials: Congress by a two-thirds vote recommends an amendment, which three-fourths of the state legislatures must approve before it becomes part of the Constitution. Another way to amend the Constitution is for the states to get Congress to call a convention to write amendments, but this method has never been used.

It is—by deliberate choice of the Founders—a slow and cumbersome process that protects against impetuous changes. The far more common way in which the Constitution changes is in interpretation of the provisions, which does not change the actual wording but rather the meaning of the words and their application to new situations. This process gives the Constitution new meaning to address contemporary (and changing) circumstances. Interpretation by courts, particularly the Supreme Court, is the best known part of the process, but all the branches of government play an important role.

Congressional Interpretation

When Congress passes a law it is making an interpretation of the Constitution under the powers granted to it. The ability to interpret the Constitution allows Congress to make laws that affect everyone in areas that are not mentioned in the Constitution and in fact were never even know to the Founders. A common example in modern times is the Commerce Clause, which grants Congress the power "to regulate Commerce with foreign Nations, and among the several States." These seemingly dry words have enabled Congress to enact hundreds of laws that affect virtually every aspect of American life, including wages and hours, racial and other discrimination, public safety (air travel, for example), communications (radio, cable, television, and more), and thousands of other activities.

Presidential Interpretation

Presidents also have interpreted the Constitution in ways that have greatly expanded presidential power. Of all the parts of the document, the presidential powers have been seen by many students of the Constitution as the least well defined and therefore the most susceptible to aggressive expansion by holders of that office. For example, the president is named as "Commander in chief of the Army and Navy," which some presidents have used to commit American military forces to war without the approval of Congress. The Constitution also give the president responsibility to take "Care that the Laws be faithfully executed," a grant so broad and so unconfined that it has allowed presidents to assume vast authority to direct the federal government's involvement in the lives of most Americans.

Judicial Interpretation

The role of the courts is crucial to defining the meaning of the Constitution's words and is closely interwoven with the actions of Congress and the president in interpreting the document. Judicial interpretation, particularly that of the Supreme Court, which is the final judicial word, also has been controversial in the nation's history because this power is held in the hands of a small number of people (nine in the case of the Supreme Court), none of whom is elected.

This extraordinary power, also called judicial review, is not explicitly stated in the Constitution, although there is evidence from the Constitutional Convention that a number of delegates assumed that the judiciary would have that authority. The power of the judiciary, and specifically the Supreme Court, to say what the Constitution means was decided early in the Republic's history in one of the Court's most important cases—Marbury v. Madison (1803). In this case, the justices (then only six in number) read into the Constitution the power of the courts to declare acts of Congress in violation of the Constitution. Over the following two centuries, the principle has become accepted as a fundamental part of the process of government in the United States.

The examples of the Court's involvement in this area are many. One of the most important for modern times, as well as one of the most controversial, involves a constitutional amendment, the Fourteenth, adopted in the wake of the Civil War. This amendment, ratified July 9, 1868, states—among other things—that all persons born or naturalized in the United States are "citizens of the United States" and the state in which they live, and that no state can deprive anybody of "equal protection of the law." This is known today as the Equal Protection Clause.

The first part dealing with citizenship is an example of a constitutional amendment to reverse a decision by the Supreme Court, Scott v. Sandford (1857), which held that blacks were not citizens and were without constitutional rights. The Dred Scott case caused a huge public outcry and was an important event on the road to the Civil War.

The equal protection language also grew from the slavery issue of the day, but has become one of the most important and contentious parts of the Constitution as legislators and judges have struggled to give it meaning. It has been used to prohibit racial discrimination in public schools, require that districts from which persons are elected to Congress or state legislatures be equal in population, and—in one of the stickiest areas—state what is meant by affirmative action in hiring, college admissions, and other practices.

The Bill of Rights

The evolving Constitution is no better illustrated than by the Bill of Rights, the first ten amendments added to the document to calm the fears of many that the federal government would be too powerful. The Bill of Rights was written to prohibit actions by the federal government that would restrict individual rights, such as freedom of religion, speech, and the press. The Bill of Rights did not apply to the states, and did not for more than a century. The courts explicitly refused to nationalize the Bill of Rights. In the second century of the nation's history, however, the Supreme Court began to bring the states under some, but not all, of the provisions of the Bill of Rights. This process is known as selective incorporation, meaning that individual Court cases have been used to apply some of the rights in the first ten amendments to the actions of state governments.

The process began in 1833 with a case, Barron v. Baltimore, in which the Supreme Court was asked to apply to the states part of the Fifth Amendment that dealt with the government's seizure of private property. The Court refused, saying that "the fifth amendment to the constitution ... is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states." The issue of applying the Bill of Rights to the states would not go away, however.

The adoption of the Fourteenth Amendment in 1868 changed the picture for those seeking ways to apply Bill of Rights protections to state government actions. That amendment, coming after the Civil War, was seen—correctly—as intended primarily through its citizenship and equal protection language to ensure the position and equality of blacks in the society. The amendment contained other language that applied to the conduct of state government authority: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" and "Nor shall any State deprive any person of life, liberty, or property, without due process of law." What do these words mean? Slowly over the next century the Supreme Court has provided answers, although never a complete and final answer.

In the latter part of the nineteenth century, the Court in The Slaughterhouse Cases (1873) addressed whether a state's action (Louisiana) violated the Privileges and Immunities Clause. The answer was an emphatic "no." The Court said that the Privileges and Immunities Clause protected only national citizenship rights, and this interpretation has remained unchanged. The Due Process Clause has been another matter.

In another case, Hurtado v. California (1884), the Court rejected the claim of Joseph Hurtado that California, in charging him with murder, had violated provisions of the Fifth Amendment involving the same due process language used in the Fourteenth Amendment. The Court, citing Barron, did not accept Hurtado's argument that the state had violated his rights (his conviction was upheld) but allowed that the Due Process Clause would protect "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." That statement opened the door to debate about whether any or all of the Bill of Rights guarantees would meet this test.

In a 1908 decision (Twining v. New Jersey) a Court majority held that the Fourteenth Amendment's Due Process Clause might protect against state action certain rights similar to those in the Bill of Rights. The Court, cautiously, would not make the full Bill of Rights apply to the states but suggested that protections that could be identified as fundamental and inalienable might be made applicable to the states through the Fourteenth Amendment's Due Process Clause. It was a step down the road to incorporation of the Bill of Rights because it allowed future Courts to bring the principles of those ten amendments into play against state action toward their citizens.

From this point on lawyers would search intently for rights and freedoms that are fundamental and inalienable—or, as the Court stated in a later case, are such "that neither liberty nor justice would exist if they were sacrificed."

Using the case-by-case approach, the Supreme Court by the end of the 1960s had made most of the protections found in the Bill of Rights applicable to the states. At first, the extension was primarily of First Amendment freedoms of press, religion, and speech. In the 1960s the Court, under Chief Justice Earl Warren, turned its attention to the rights of persons accused of criminal activity. It made applicable to the states all of the major parts of the Bill of Rights intended to protect citizens against unfair and overreaching government actions, such as the following:

  • The Fourth Amendment's guarantee against unreasonable search and seizure of a person or a person's home, car, or other personal space, and the rule that any evidence gathered by law enforcement officers in this manner could not be used in court to convict the person (the exclusionary rule).
  • The Fifth Amendment's Protection against self-incrimination or double jeopardy (being tried twice for the same crime).
  • The Sixth Amendment's rights to a public trial, right to counsel (even if the defendant cannot afford a lawyer), trial by jury, confrontation of witnesses, and speedy trial.
  • The Eighth Amendment's bar of cruel and unusual punishment.

The individual and personal liberties that underlie the Bill of Rights have provided the most dramatic examples in the latter part of the twentieth century of the evolution of the Constitution to address contemporary concerns. But it is not the only dramatic example. In the 1930s, the Supreme Court essentially did an about-face in its interpretation of the Constitution's words that apply to economic and business conduct in the nation. Until the 1930s the Court constructed elaborate doctrines that all but forbid the government from involvement in this area. But under the crisis of the Great Depression and the economic survival of the nation, the Court reversed itself and allowed the federal government to pass hundreds of laws, collectively known to history as the New Deal, that pushed the government deeply into the economic and business activities of America.

But however it came about—through formal amendment or interpretation by the courts, Congress, or the president—the U.S. Constitution has proven a remarkably consistent and stable and yet pliable document that Americans of all political persuasions have accepted as the basic law of the land.

CQ Press