Thursday, September 13, 2012

United States Constitutional Convention

Before the Constitution of the United States was drafted, the nearly 4 million inhabitants of the 13 new-independent states were governed under the Articles of Confederation. These were created by the Second Continental Congress. It soon became evident to nearly all that the chronically underfunded Conderation government, as originally organized, was inadequate for managing the various conflicts that arose among the states. As the Articles of Confederation could only be amended by unaminous vote of the states, any state had effective veto power over any propesed change. In addition, the Articles gave the weak federal government no taxing power. This made it wholly dependent on the states for it's money, and had no power to force delinquent states to pay. Once the immediate task of winning the American Revolutionary War had passed, the states began to look to their own interests, and disputes as mentioned arose. 

Photography by Christine McClintock Hudspeth
The Constitutional Convention (also known as the Philadephia Convention, the Federal Convention, or the Grand Convention at Phileadelphia) took place from May 14 1787 to September 17, of the same year, in Philadelphia, Pennsylvania to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from Great Britain. 

By 1786, Americans recognized that the Articles of Confederation, the foundation document for the new United States adopted in 1777, had to be substantially mondified.  The Articles gave congress virtually no power to regulate domestic affairs - no power to tax, no power to regulate commerce. Without coercive power, Congress had to depened on fiancial contributions from the states and they often time turned down requests. Congress had neither the money to pay soldiers for the service Once the immediate task of winning the American Revolutionary War had passed, the states began to look to their own interests, and disputes as mentioned arose. 

These included a dispute between Marland and Virgina over the Potomac River and opposition to Rhode Island's impossing taxes on all traffic passing through it on the post road that link all the states. James Madison suggested that state governments should appoint commissioners, "to take into consideration the trade of the United States; to examine the relative situation and trade of said states; to consider how far a uniform system in their commerical regulations may be ncessary to that common intersts and permanent harmony." the Revolutionary War or to repay foreign loan. In 1786, the United States was bankrupt. 
Photograph by Christine McClintock Hudspeth
States engaged in an endless war of economic discrimination against commerce from other states. Southern states and Northern states battled each other for economic advantage. The country was really ill-equipped to fight any war. Other nations wondered whether treaties with the United States were worth the paper they were basically written on. The United States was dismissed by European nations as "a third-rate republic."

Then there was the situation in Rhode Island, a state legislature dominated by the debtor class passed legislation essentially forgiving all debts as it considered a measure that would redistribute property every thirteen years. The final straw for many came in western Massachusetts where angry farmers, led by Daniel Shays, took up arms and engage in active rebellion in and effort to gain debt relief.  Troubles finally convinced the Continental congress to convene

Although the Convention was intended to revise the Articles of Confederation, the intention from the outset of many of it's proponents, chief among them James Madison and Alexander Hamilton, was to create a new government rather than fix the existing one. The delegates elected George Washington to preside over the Convention. The result of the Convention was the United States Constitution, placing the Convention among the most significant events in the history of the United States. The most contentious disputes revolved around the composition and election of the Senate, how 'proportional representation" was to be defined (whether to include slave or other property), whether to divide the executive power between three persons or invest the power into a single president, how to elect the president, how long his term was to be and whether he could stand for reelection, what offenses should be impeachable, the nature of a fugitive slave clause, whether to allow the abolition of the 
Another area of conflict was the belief of Madison's was that the Federal legislature should be able to invalidate state laws. This ideas was so contentious it was dropped. Other additions to the new government would be the ability of the president to hold veto power over proposed laws and the ability of the bicameral legislature to vote against the presidents veto. Other concerns where to provide the president a successor if he was unable to complete his term.  trade, and whether judges should should be chosen by the legislature or executive branch. There was so much that we today take for granted that had not been decided in our nations infancy. So the Second Constitutional Convention was called.

The Convention 

Due to the difficulty of travel in the late 18th century, very few of the selected delegates were present on the designated day of May 14, 1787, and it was not until May 25 that quorum of seven states was secured. George Washington was unanimously elected president of the Convention, and it was agreed that the discussions and votes would be kept secret until the conclusion of the meeting. Although William Jackson was elected as secretary, his records were brief and included very little detail. It was the records kept by James Madison and notes of Robert Yates , which remain the most complete record of the Convention., Throughout the debate, delegates constantly referred to precedents from history in support of their position. While waiting for the Convention to formally begin, James Madison sketched out his initial draft, which became known as the the Virginia Plan and which reflected his views as a strong nationalist. By the time the rest of the Virginia delegation arrived, most of the Pennsylvania delegation had arrived as well. They agreed on Madison's plan, and formed what came to be the predominant coalition. By the time the Convention started, the only blueprints that had been assembled were Madison's Virginia Plan and Charles Pickney's plan. As Pickney didn't have a coalition behind his plan, Madison's plan was the starting point for deliberations.

The Convention agreed on several principles, Most importantly, they agreed that the Convention should go beyond it's mandate merely to amend the Articles of Confederation, and instead should produce a new constitution outright. While some delegates thought this illegal, the Articles of Confederation were closer to a treaty between sovereign states than they were to a national constitution, so the genuine legal problems were limited. Another principle they agreed on was the the new government would have all the powers of the Confederation Congress, plus additional powers over the states. Once agreeing on these principles, the Convention voted on the Virginia plan and signaled their approval for it. Once this was done, they began to modify it. Madison's plan operated on several assumption that were not seriously challenged by anyone. During the deliberations, few raised serious objections to the planned bicameral congress, nor the separate executive functions, law making embodied in the legislature, and executing embodied in the king and his court, the division of the legislature from the executive and judiciary was a natural and uncontested point. What was important was that the executive function had to be independent of the legislature. In their aversion to kingly power. American legislatures had created state governments where the executive was beholden to the legislature, and by the late 1780's this was widely seen as being a source of paralysis. 

The court, who represented the King in the English system throughout his realm. Madison believed that in the American states, this direct link between state executives and judges was a source of corruption through patronage and thought the link had to be severed between the two, thus creating the "third branch" of the Judiciary which had been without any direct precedent, but rather beholden to the legislature rather than the executive branch. The decision as to who would choose the judiciary had to be decided and eventually a compromise was reached that the president should choose judges and the Senate confirm them. 

Clearly there is more to learn about the founding of our country and it's early growing pains.
This will be addressed in other entries.  One thing revelant to the today's date is on September 13, 1788 the date for the first presidential election in the United States was set, and New York became our country's temporary capital. 


  • Article VI:  Supreme Law of the Land
  • Research usually in cases:  judicial interpretation and judicial review
  • Text:  U.S. Code, USCA, USCS, GPO FDSys, Black's Law Dictionary, OCGA, online sources


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