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The Constitution

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At age eighteen, all American citizens areeligible to vote in state and national elections.This has not always been the case. It took anamendment to the U.S. Constitution—one ofonly seventeen that have been added since theBill of Rights was ratified in 1791—to guaranteethe vote to those under twenty-one years of age.

In 1942, during World War II, RepresentativeJennings Randolph (D–WV) proposed aconstitutional amendment that would lower thevoting age to eighteen, believing that sinceyoung men were old enough to be drafted tofight and die for their country, they also shouldbe allowed to vote. He continued to reintroducehis proposal during every session of Congress,and in 1954, President Dwight D. Eisenhowerendorsed the idea in his State of the UnionAddress. Presidents Lyndon B. Johnson andRichard M. Nixon—men who had also calledupon the nation’s young men to fight on foreignshores—echoed his appeal.1

During the 1960s, the campaign to lowerthe voting age took on a new sense of urgency

as hundreds of thousands of young men weredrafted to fight in Vietnam, and thousands ofmen and women were killed in action. “OldEnough to Fight, Old Enough to Vote,” was onepopular slogan of the day. By 1970, fourstates—the U.S. Constitution allows states toset the eligibility requirements for theirvoters—had lowered their voting ages toeighteen. Later that year, Congress passedlegislation lowering the voting age in national,state, and local elections to eighteen.

The state of Oregon, however, challengedthe constitutionality of the law in court,arguing that Congress had not been given theauthority to establish a uniform voting age instate and local government elections by theConstitution. The U.S. Supreme Court agreed.2

The decision from the sharply divided Courtmeant that those under age twenty-one couldvote in national elections but that the stateswere free to prohibit them from voting in stateand local elections. The decision presented thestates with a logistical nightmare. States setting

What Should I Know About . . .After reading this chapter, you should be able to

2.1 Trace the historical developments that led to thecolonists’ break with Great Britain and theemergence of the new American nation, p. 30.

2.2 Identify the key components of the Articles ofConfederation and the reasons why it failed, p. 38.

2.3 Outline the issues and compromises that werecentral to the writing of the U.S. Constitution, p. 40.

2.4 Analyze the underlying principles of the U.S.Constitution, p. 44.

2.5 Explain the conflicts that characterized the drivefor ratification of the U.S. Constitution, p. 50.

2.6 Distinguish between the methods for proposingand ratifying amendments to the U.S.Constitution, p. 54.

the voting age at twenty-one would be forcedto keep two sets of registration books: one forvoters twenty-one and over, and one for votersunder twenty-one.

Jennings Randolph, by then a senator fromWest Virginia, reintroduced his proposedamendment to lower the national voting ageto eighteen.3 Within three months of theSupreme Court’s decision, Congress sent theproposed Twenty-Sixth Amendment to thestates for their ratification. The required three-fourths of the states approved the amendmentwithin three months—making its adoption onJune 30, 1971, the quickest in the history ofthe constitutional amending process.

While young people traditionally have not exercised their Twenty-Sixth Amendmentrights in large numbers, there seems to be someindication that voter turnout among those 18 to 24 is on the rise. Record numbers of youngvoters went to the polls in the 2008 presidentialelection; many credited discussions onFacebook and other social networking sites for

their political interest and activism. The votes ofyoung people also played an important role inelecting Barack Obama. In 2010, however,some commentators attributed Democraticlosses to low voter turnout among youngpeople. Only 11 percent of those who votedwere under age twenty-nine.

When the U.S. Constitution was written in 1787, only white property owning males were allowed to vote.Today, suffrage has been broadly expanded to include African Americans, women, and people age eighteen andover, shown on the right.

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30 CHAPTER 2 The Constitution

The U.S. Constitution was never intended to be easy to change. The processby which it could be changed or amended was made time consuming anddifficult. Over the years, thousands of amendments—including those to pro-hibit child labor, provide equal rights for women, grant statehood to the

District of Columbia, balance the federal budget, and ban flag burning—have beendebated or sent to the states for their approval, only to die slow deaths. Only twenty-seven amendments have successfully made their way into the Constitution. What theFramers wrote in Philadelphia has continued to work, in spite of increasing demandson and dissatisfaction with our national government. Although Americans oftenclamor for reform, perhaps they are happier with the system of government createdby the Framers than they realize.

The ideas that went into the making of the Constitution and the ways that it hasevolved to address the problems of a growing and changing nation are at the coreof our discussion in this chapter.

■ First, we will examine the roots of the new American nation and thecircumstances surrounding the adoption of the Declaration of Independenceand the colonists’ break with Great Britain.

■ Second, we will discuss the first attempt at American government created bythe Articles of Confederation.

■ Third, we will examine the circumstances surrounding writing the U.S.Constitution in Philadelphia.

■ Fourth, we will review the results of the Framers’ efforts: the U.S. Constitution.

■ Fifth, we will present the drive for ratification of the U.S. Constitution.

■ Finally, we will address methods of amending the U.S. Constitution.

ROOTS OF the New American Nation2.1 . . . Trace the historical developments that led to the colonists’ break

with Great Britain and the emergence of the new American nation.

Starting in the early seventeenth century, colonists came to the New World for a varietyof reasons. Often, as detailed in chapter 1, it was to escape religious persecution. Otherscame seeking a new start on a continent where land was plentiful.The independence anddiversity of the settlers in the New World made the question of how best to rule the newcolonies a tricky one. More than merely an ocean separated Great Britain from thecolonies; the colonists were independent people, and it soon became clear that the crowncould not govern its subjects in the colonies with the same close rein used at home. KingJames I thus allowed some local participation in decision making through arrangementssuch as the first elected colonial assembly, the Virginia House of Burgesses, formed in1619, and the elected General Court that governed the Massachusetts Bay Colony after1629. Almost all of the colonists agreed that the king ruled by divine right, but Britishmonarchs allowed the colonists significant liberties in terms of self-government, religiouspractices, and economic organization. For 140 years, this system worked fairly well.4

By the early 1760s, however, a century and a half of physical separation, develop-ment of colonial industry, and the relative self-governance of the colonies led to

Roots of the New American Nation 31

weakening ties with—and loyalties to—the crown. By this time, each of the thirteencolonies had drafted its own written constitution, which provided the fundamental rulesor laws for each colony. Moreover, many of the most oppressive British traditions—feudalism, a rigid class system, and the absolute authority of the king—were absent inthe New World. Land was abundant. The guild and craft systems that severely limitedentry into many skilled professions in Great Britain did not exist in the colonies.Although religion was central to the lives of most colonists, there was no single statechurch, and the British practice of compulsory tithing (giving a fixed percentage of one’searnings to the state-sanctioned and -supported church) was nonexistent.

Trade and TaxationMercantilism, an economic theory designed to increase a nation’s wealth through thedevelopment of commercial industry and a favorable balance of trade, justifiedBritain’s maintenance of strict import/export controls on the colonies. After 1650, forexample, the British Parliament passed a series of navigation acts to prevent its chiefrival, Holland, from trading with the British colonies. From 1650 until well into the1700s, Britain tried to regulate colonial imports and exports, believing that it was crit-ical to export more goods than it imported as a way of increasing the gold and silverin its treasury. These policies, however, were difficult to enforce and were widely ig-nored by the colonists, who saw little self-benefit in them. Thus, for years, an unwrit-ten agreement existed. The colonists relinquished to the crown and the BritishParliament the authority to regulate trade and conduct international affairs, but theyretained the right to levy their own taxes.

This fragile agreement was soon put to the test. The French and Indian War,fought from 1756 to 1763 on the western frontier of the colonies and in Canada, waspart of a global war initiated by the British, then the greatestpower in the world. This American phase of what was calledthe Seven Years War was fought between Britain and Francewith Indian allies. In North America, its immediate cause wasthe rival claims of those two European nations for the landsbetween the Allegheny Mountains and the Mississippi River.The Treaty of Paris, signed in 1763, not only signaled the endof this war but also greatly increased the size of land claimedby Great Britain in North America. France ceded to GreatBritain the control of all lands east of the Mississippi River.The colonists expected that with the Indian problems on thewestern frontier now under control, westward expansioncould begin in earnest. In 1763, however, they were shockedwhen the crown decreed that the colonists were not to ex-pand their settlements west of the Allegheny Mountains, asshown in Figure 2.1. Parliament believed that expansion intoIndian territory would lead to new expenditures for the de-fense of the settlers, draining the British treasury, which hadyet to recover from the high cost of waging the French andIndian War.

To raise money to pay for the war as well as the expensesof administering the colonies, Parliament enacted the SugarAct in 1764. This act placed taxes on sugar, wine, coffee, andother products commonly exported to the colonies. A postwarcolonial depression heightened resentment of the tax. Majorprotest, however, failed to materialize until imposition ofthe Stamp Act by the British Parliament in 1765. This lawrequired that all paper items, from playing cards to books,bought and sold in the colonies carry a stamp mandated by the

*Although the Treaty of Paris granted the British control of all lands east of the Mississippi, the king limited the colonists’ expansion to areas east of the Appalachian Mountains.

Boundary of westward expansion*Area of settlement within the British colonies

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Figure 2.1 How did the British presence in what isnow the United States look in 1763?This map shows the boundaries of the British colonies setby the crown after the Treaty of Paris was signed in 1763.

mercantilismAn economic theory designed to in-crease a nation’s wealth through thedevelopment of commercial industryand a favorable balance of trade.

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crown. The tax itself was not offensive to the colonists. However,they feared this act would establish a precedent for the British Par-liament not only to regulate commerce in the colonies, but also toraise revenues from the colonists without the approval of the colo-nial governments. Around the colonies, the political cry “no taxa-tion without representation” became prominent. To add insult toinjury, in 1765, Parliament passed the Quartering Act, which re-quired the colonists to furnish barracks or provide living quarterswithin their own homes for British troops.

Most colonists, especially those in New England, where theseacts hit merchants hardest, were outraged. Men throughout thecolonies organized the Sons of Liberty, under the leadership ofSamuel Adams and Patrick Henry. Women formed the Daughtersof Liberty. Protests against the Stamp Act were violent and loud.Riots, often led by the Sons of Liberty, broke out. They were espe-cially violent in Boston, where the colonial governor’s home wasburned by an angry mob, and British stamp agents charged withcollecting the tax were threatened. A boycott of goods needing thestamps as well as British imports also was organized.

First Steps Toward IndependenceIn 1765, at the urging of Samuel Adams, nine of the thirteencolonies sent representatives to a meeting in New York City, wherea detailed list of crown violations of the colonists’ fundamental

1765 Stamp Act Congress—Meeting

convenes in New York City at the urging of

Samuel Adams.

1767 Townshend Acts— These acts passed by the British Parliament impose duties on a

host of colonial imports, including the colonists’ favorite

drink, tea.

1770 Boston Massacre—British troops

open fire on a mob, killing five colonists.

TIMELINE: Key Events Leading to American Independence

1763 Treaty of Paris—The treaty ends the French and Indian War—France cedes its

claims to any lands east of the Mississippi River.

*Although the Treaty of Paris granted the British control of all lands east of the Mississippi, the king limited the colonists’ expansion to areas east of the Appalachian Mountains.

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Who was Samuel Adams? Today, Samuel Adams(1722–1803), cousin of President John Adams, iswell known for the beer that bears his name. Hisoriginal claim to fame was as an early leaderagainst the British and loyalist oppressors, althoughhe did bankrupt his family’s brewery business.

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1773 Boston Tea Party—Public protest in Boston Harbor is held in

reaction to what the colonists believe to be oppressive taxes on tea

and other goods.

1774 First Continental Congress—This meeting to discuss relations with Great

Britain is attended by delegates from all the colonies but Georgia.

1775 Second Continental Congress—Before it can meet,

colonists called Minutemen fight the British at Lexington and Concord, beginning the

Revolutionary War.

1776 Declaration of Independence—Twelve of thirteen colonies vote for

independence.

1777 Articles of Confederation—Document passed by the Second Conti-nental Congress establishes a governing framework for the

union of states.

Stamp Act CongressMeeting of representatives of nine ofthe thirteen colonies held in NewYork City in 1765, during whichrepresentatives drafted a documentto send to the king listing how theirrights had been violated.

rights was drafted. Known as the Stamp Act Congress, this gathering was the first of-ficial meeting of the colonies and the first step toward creating a unified nation. Atten-dees defined what they thought to be the proper relationship between colonialgovernments and the British Parliament; they ardently believed Parliament had no au-thority to tax them without colonial representation in that body yet still remained loyalto the king. In contrast, the British believed that direct representation of the colonists wasimpractical and that members of Parliament represented the best interests of all the British,including the colonists who were British subjects.

The Stamp Act Congress and its petitions to the crown did little to stop the on-slaught of taxing measures. Parliament did, however, repeal the Stamp Act and revisethe Sugar Act in 1766, largely because of the uproar made by British merchants whowere losing large sums of money as a result of the boycotts. Rather than appeasing thecolonists, however, these actions emboldened them to increase their resistance. In 1767,Parliament enacted the Townshend Acts, which imposed duties on all kinds of colonialimports, including tea. Responses from the Sons and Daughters of Liberty were im-mediate. Another boycott of tea was announced, and almost all colonists gave up theirfavorite drink in a united show of resistance to the tax and British authority.5 Tensionscontinued to run high, especially after the British sent 4,000 troops to Boston. OnMarch 5, 1770, British troops opened fire on an unruly mob that included disgruntleddock workers, whose jobs had been taken by British soldiers, and members of the Sonsof Liberty, who were taunting the soldiers and throwing objects at British sentries sta-tioned in front of the Boston Customs House. Five colonists were killed in what be-came known as the Boston Massacre. Following this confrontation, all duties exceptthose on tea were lifted. The tea tax, however, continued to be a symbolic irritant.In 1772, at the suggestion of Samuel Adams, colonists created Committees ofCorrespondence to keep each other abreast of developments with the British. These

Committees of CorrespondenceOrganizations in each of the American colonies created to keepcolonists abreast of developmentswith the British; served as powerfulmolders of public opinion againstthe British.


committees also served as powerful molders ofpublic opinion against the British.

Meanwhile, despite dissent in Britain overthe treatment of the colonies, Parliament passedanother tea tax designed to shore up the saggingsales of the East India Company, a British ex-porter of tea. The colonists’ boycott had left thattrading house with more than 18 million poundsof tea in its warehouses. To rescue British mer-chants from disaster, in 1773 Parliament passedthe Tea Act, granting a monopoly to the finan-cially strapped East India Company to sell thetea imported from Britain. The company wasallowed to funnel business to American mer-chants loyal to the crown, thereby undercuttingcolonial merchants, who could sell only teaimported from other nations. The effect was todrive down the price of tea and to hurt colonialmerchants, who were forced to buy tea at thehigher prices from other sources.

When the next shipment of tea arrived inBoston from Great Britain, the colonists re-sponded by throwing the Boston Tea Party.Similar tea parties were held in other colonies.When the news of these actions reached KingGeorge III, he flew into a rage against the ac-tions of his disloyal subjects. “The die is nowcast,” the king told his prime minister. “Thecolonies must either submit or triumph.”

King George’s first act of retaliation was topersuade Parliament to pass the Coercive Actsof 1774. Known in the colonies as the Intolera-ble Acts, they contained a key provision calling

for a total blockade of Boston Harbor cutting off Bostonians’ access to many foodstuffs, until restitution was made for the tea. Another provision reinforced the Quar-tering Act. It gave royal governors the authority to house British soldiers in thehomes of local Boston citizens, allowing Britain to send an additional 4,000 soldiersto patrol Boston.

The First Continental CongressThe British could never have guessed how the cumulative impact of these actionswould unite the colonists. Samuel Adams’s Committees of Correspondence spread theword, and food and money were sent to the people of Boston from all over the thir-teen colonies. The tax itself was no longer the key issue; now the extent of Britishauthority over the colonies was the far more important question. At the request of thecolonial assemblies of Massachusetts and Virginia, all but Georgia’s colonial assemblyagreed to select a group of delegates to attend a continental congress authorized tocommunicate with the king on behalf of the now-united colonies.

The First Continental Congress met in Philadelphia from September 5 toOctober 26, 1774. It was made up of fifty-six delegates. The colonists had yet tothink of breaking with Great Britain; at this point, they simply wanted to iron outtheir differences with the king. By October, they had agreed on a series of resolutions

First Continental CongressMeeting held in Philadelphia fromSeptember 5 to October 26, 1774, inwhich fifty-six delegates (from everycolony except Georgia) adopted aresolution in opposition to the Coercive Acts.

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What really happened at the Boston Massacre? Paul Revere’s famousengraving of the Boston Massacre played fast and loose with the facts.While the event occurred on a cold winter’s night, the engraving features aclear sky and no ice or snow. Crispus Attucks, the Revolution’s first martyr,was African American, though the engraving depicts him as a white man.Popular propaganda such as this engraving did much to stoke anti-Britishsentiment in the years leading up to the Revolutionary War.


to oppose the Coercive Acts and to establish a formal organization to boycott Britishgoods. The Congress also drafted a Declaration of Rights and Resolves, which calledfor colonial rights of petition and assembly, trial by peers, freedom from a standingarmy, and the selection of representative councils to levy taxes. The Congress furtheragreed that if the king did not capitulate to its demands, it would meet again inPhiladelphia in May 1775.

The Second Continental CongressKing George III refused to yield, tensions continued to rise, and a Second Conti-nental Congress was deemed necessary. Before it could meet, fighting broke outearly in the morning of April 19, 1775, at Lexington and Concord, Massachusetts,with what Ralph Waldo Emerson called “the shot heard round the world.” Eightcolonial soldiers, called Minutemen, were killed, and 16,000 British troops be-sieged Boston.

When the Second Continental Congress convened in Philadelphia on May 10,1775, delegates were united by their increased hostility to Great Britain. In a finalattempt to avert conflict, the Second Continental Congress adopted the Olive BranchPetition on July 5, 1775, asking the king to end hostilities. King George III rejectedthe petition and sent an additional 20,000 troops to quell the rebellion; he labeled allin attendance traitors to the king and subject to death. As a precautionary measure,the Congress already had appointed George Washington of Virginia as commanderin chief of the Continental Army. The selection of a southern leader was a strategicdecision, because up to that time British oppression largely was felt in the Northeast.In fact, the war essentially had begun with the shots fired at Lexington and Concord,Massachusetts, in April 1775.

In January 1776, Thomas Paine, with the support and encourage-ment of Benjamin Franklin, issued (at first anonymously) CommonSense, a pamphlet forcefully arguing for independence from GreatBritain. In frank, easy-to-understand language, Paine denounced thecorrupt British monarchy and offered reasons to break with GreatBritain. “The blood of the slain, the weeping voice of nature cries ‘TisTime to Part,’ ” wrote Paine. Common Sense, widely read throughoutthe colonies, was instrumental in changing minds in a very short time.In its first three months of publication, the forty-seven-page CommonSense sold 120,000 copies, the equivalent of almost 22 million books,given the current U.S. population. One copy of Common Sense was indistribution for every thirteen people in the colonies—a truly aston-ishing number, given the low literacy rate.

Common Sense galvanized the American public against reconcilia-tion with Great Britain. On May 15, 1776, Virginia became the firstcolony to call for independence, instructing one of its delegates to theSecond Continental Congress to introduce a resolution to that effect.On June 7, 1776, Richard Henry Lee of Virginia rose to move “thatthese United Colonies are, and of right ought to be, free and independ-ent States, and that all connection between them and the State of GreatBritain is, and ought to be, dissolved.”His three-part resolution—whichcalled for independence, the formation of foreign alliances, and prepara-tion of a plan of confederation—triggered hot debate among thedelegates. A proclamation of independence from Great Britain wastreason, a crime punishable by death. Although six of the thirteencolonies had already instructed their delegates to vote for independence,the Second Continental Congress was suspended to allow its delegates

How much can one essayaccomplish? Common Sense, byThomas Paine, forcefully arguedfor independence from GreatBritain. The pamphlet became acolonial best seller and wasinstrumental in rallying people tooppose British rule.

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Second Continental CongressMeeting that convened in Philadel-phia on May 10, 1775, at which itwas decided that an army should beraised and George Washington ofVirginia was named commander in chief.


to return home to their respective colonial legislatures forfinal instructions. Independence was not a move to betaken lightly.

The Declaration ofIndependenceCommittees were set up to consider each point ofRichard Henry Lee’s proposal. A committee of five wasselected to begin work on the Declaration of Indepen-dence. The Congress selected Benjamin Franklin ofPennsylvania, John Adams of Massachusetts, RobertLivingston of New York, and Roger Sherman of Con-necticut as members of the committee. Adams lobbiedhard for the addition of Thomas Jefferson, a South-erner, to add balance. He was also impressed withJefferson’s writings, which revealed a “peculiar felicityof expression.” Thus, Jefferson of Virginia was selectedas chair.

On July 2, 1776, twelve of the thirteen colonies(with New York abstaining) voted for independence.Two days later, the Second Continental Congress votedto adopt the Declaration of Independence largelypenned by Thomas Jefferson. On July 9, 1776, the Dec-laration, now with the approval of New York, was readaloud in Philadelphia.6

In simple but eloquent language, Jefferson set outthe reasons for the colonies’ separation from GreatBritain. Most of his stirring rhetoric drew heavily on theworks of seventeenth- and eighteenth-century politicalphilosophers, particularly the English philosopher JohnLocke (see chapter 1). Locke had written South Car-olina’s first constitution, a colonial charter drawn up in1663 when that colony was formed by King Charles IIand mercantile houses in Great Britain. In fact, many ofthe words in the opening of the Declaration of Indepen-dence closely resemble passages from Locke’s SecondTreatise of Civil Government.

Locke was a proponent of social contract theory,which holds that governments exist based on the consentof the governed. According to Locke, people agree to set

up a government largely for the protection of property rights, to preserve life and lib-erty, and to establish justice. Furthermore, argued Locke, individuals who give theirconsent to be governed have the right to resist or remove rulers who deviate fromthose purposes. Such a government exists for the good of its subjects and not for thebenefit of those who govern. Thus, rebellion is the ultimate sanction against a govern-ment that violates the rights of its citizens.

It is easy to see the colonists’ debt to John Locke. In stirring language, the Decla-ration of Independence proclaims:

We hold these truths to be self-evident, that all men are created equal, that they areendowed by their Creator with certain unalienable Rights, that among these are Life,Liberty and the pursuit of Happiness.

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Declaration of IndependenceDocument drafted by Thomas Jef-ferson in 1776 that proclaimed theright of the American colonies toseparate from Great Britain.

Where did the ideas of the Declaration of Independence comefrom? Thomas Jefferson’s draft (below) drew heavily from the ideas ofsocial contract theorist John Locke.


Jefferson and others in attendance at the Second Continental Congress wanted to havea document that would stand for all time, justifying their break with Great Britain andclarifying their notions of the proper form of government. So, Jefferson continued:

That to secure these rights, Governments are instituted among Men, deriving their justpowers from the consent of the governed. That whenever any Form of Governmentbecomes destructive of these ends, it is the Right of the People to alter or abolish it, andto institute new Government, laying its foundation on such Principles and organizingits Powers in such form, as to them shall seem most likely to effect their Safety andHappiness.

After this stirring preamble, the Declaration enumerates the wrongs that the colonistssuffered under British rule. All pertain to the denial of personal rights and liberties,many of which would later be guaranteed by the U.S. Constitution through the Billof Rights. (To learn more about a modern take on the Declaration of Independence,see Analyzing Visuals: We Hold These Truths to Be Self-Evident. . . .)

ANALYZING VISUALSWe Hold These Truths to Be Self-Evident . . .

This political cartoon was published in March 2009, shortly after President Barack Obama signed the American Recoveryand Reinvestment Act, otherwise known as the “stimulus” bill. Look at the cartoon and consider the questions.

■ What meeting is referenced in this cartoon?■ What point is the cartoonist trying to communicate?■ How do the political leanings of the cartoonist reveal themselves?

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After the Declaration was signed and transmitted to the king, the RevolutionaryWar was fought with a greater vengeance. At a September 1776 peace conference onStaten Island (New York), British General William Howe demanded revocation of theDeclaration of Independence. Washington’s Continental Army refused, and the warraged on while the Continental Congress struggled to fashion a new united government.

The First Attempt at Government:The Articles of Confederation

2.2 . . . Identify the key components of the Articles of Confederation and the reasons why it failed.

As noted earlier, the British had no written constitution. The delegates to the Sec-ond Continental Congress were attempting to codify arrangements that had neverbefore been put into legal terminology. To make things more complicated, the dele-gates had to arrive at these decisions in a wartime atmosphere. Nevertheless, in late1777, the Articles of Confederation, creating a loose “league of friendship” betweenthe thirteen sovereign or independent colonies (some who even called themselvesseparate countries), were passed by the Congress and presented to the states for theirratification.

The Articles created a type of government called a confederation or confederacy.Unlike Great Britain’s unitary system of government, wherein all of the powers of thegovernment reside in the national government, the national government in a confed-eration derives all of its powers directly from the states.Thus, the national governmentin a confederacy is weaker than the sum of its parts, and the states often considerthemselves independent nation-states linked together only for limited purposes suchas national defense. So, the Articles of Confederation proposed the following:

■ A national government with a Congress empowered to make peace, coin money,appoint officers for an army, control the post office, and negotiate with Indian tribes.

■ Each state’s retention of its independence and sovereignty, or ultimate authority,to govern within its territories.

■ One vote in the Continental Congress for each state, regardless of size.■ The vote of nine states to pass any measure (a unanimous vote for any amendment).■ The selection and payment of delegates to the Congress by their respective state

legislatures.

The Articles, finally ratified by all thirteen states in March 1781, fashioned a gov-ernment that reflected the political philosophy of the times.7 Although it had its flaws,the government under the Articles of Confederation saw the nation through the Revo-lutionary War. However, once the British surrendered in 1781, and the new nationfound itself no longer united by the war effort, the government quickly fell into chaos.

Problems Under the Articles of ConfederationOver 250 years ago, Americans had great loyalties to their states and often did not eventhink of themselves as Americans.This lack of national identity or loyalty in the absenceof a war to unite the citizenry fostered a reluctance to give any power to the nationalgovernment. By 1784, just one year after the Revolutionary Army was disbanded, gov-erning the new nation under the Articles of Confederation proved unworkable.8 In fact,historians refer to the chaotic period from 1781 to 1789 when the former colonies were


confederationType of government where the na-tional government derives its powersfrom the states; a league ofindependent states.

Articles of ConfederationThe compact among the thirteenoriginal colonies that created a looseleague of friendship, with thenational government drawing itspowers from the states.

The First Attempt at Government: The Articles of Confederation 39

governed under the Articles of Confederation as the critical period. Congress rarelycould assemble the required quorum of nine states to conduct business. Even when itdid meet, there was little agreement among the states on any policies. To raise revenueto pay off war debts and run the government, various land, poll, and liquor taxes wereproposed. But, since Congress had no specific power to tax, all these proposals wererejected. At one point, Congress was even driven out of Philadelphia (then the capital ofthe new national government) by its own unpaid army.

Although the national government could coin money, it had no resources to backup the value of its currency. Continental dollars were worth little, and trade betweenstates became chaotic as some states began to coin their own money. Another weaknesswas that the Articles of Confederation did not allow Congress to regulate commerceamong the states or with foreign nations. As a result, individual states attempted to en-ter into agreements with other countries, and foreign nations were suspicious of tradeagreements made with the Congress of the Confederation. In 1785, for example, Mass-achusetts banned the export of goods in British ships, and Pennsylvania levied heavyduties on ships of nations that had no treaties with the U.S. government.

Fearful of a chief executive who would rule tyrannically, the drafters of theArticles made no provision for an executive branch of government that would beresponsible for executing, or implementing, laws passed by the legislative branch.Instead, the president was merely the presiding officer at meetings. John Hanson, aformer member of the Maryland House of Delegates and of the First ContinentalCongress, was the first person to preside over the Congress of the Confederation.Therefore, he is often referred to as the first president of the United States.

The Articles of Confederation, moreover, had no provision for a judicial systemto handle the growing number of economic conflicts and boundary disputes amongthe individual states. Several states claimed the same lands to the west, and Pennsylvaniaand Virginia went to war with each other.

The Articles’ greatest weakness, however, was the lack of a strongcentral government. Although states had operated independently be-fore the war, during the war they acceded to the national govern-ment’s authority to wage armed conflict. Once the war was over,however, each state resumed its sovereign status and was unwilling togive up rights, such as the power to tax, to an untested national gov-ernment. Consequently, the government was unable to force the statesto abide by the provisions of the second Treaty of Paris, signed in1783, which officially ended the Revolutionary War. For example,states passed laws to allow debtors who owed money to Great Britainto postpone payment. States also opted not to restore property to citi-zens who had remained loyal to Britain during the war. Both actionsviolated the treaty.

The crumbling economy was made worse by a series of bad har-vests that failed to produce cash crops, thus making it difficult forfarmers to get out of debt quickly. George Washington and AlexanderHamilton, both interested in the questions of trade and frontierexpansion, soon saw the need for a stronger national government withthe authority to act to solve some of these problems. They were notalone. In 1785 and 1786, some state governments began to discussways to strengthen the national government.

Shays’s RebellionBefore action to strengthen the government could take place,new unrest broke out in America. In 1780, Massachusetts adopted aconstitution that appeared to favor the interests of the wealthy.

What happened during Shays’sRebellion? With Daniel Shays inthe lead, a group of farmers whohad served in the ContinentalArmy marched on the courthousein Springfield, Massachusetts, to stop the state court from fore-closing on the veterans’ farms.

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Property-owning requirements barred the lower and middle classes from voting andoffice holding. And, as the economy of Massachusetts worsened, banks foreclosedon the farms of many Massachusetts Continental Army veterans who were waitingfor promised bonuses that the national government had no funds to pay. The laststraw came in 1786, when the Massachusetts legislature enacted a new law requir-ing the payment of all debts in cash. Frustration and outrage at the new law causedDaniel Shays, a former Continental Army captain, and 1,500 armed, disgruntledfarmers to march to Springfield, Massachusetts. This group forcibly restrained thestate court located there from foreclosing on the mortgages on their farms.

The Congress immediately authorized the secretary of war to call for a new nationalmilitia. A $530,000 appropriation was made for this purpose, but every state except Vir-ginia refused Congress’s request for money.The governor of Massachusetts then tried toraise a state militia, but because of the poor economy, the state treasury lacked the nec-essary funds to support his action. Frantic attempts to collect private financial supportwere made, and a militia finally was assembled. By February 4, 1787, this privately paidforce put a stop to what was called Shays’s Rebellion. The failure of the Congress tomuster an army to put down the rebellion provided a dramatic example of the weak-nesses inherent in the Articles of Confederation and shocked the nation’s leaders intorecognizing the new national government’s inadequacies. And, it finally prompted sev-eral states to join together to call for a convention in Philadelphia in 1787.

The Miracle at Philadelphia:Writing the U.S. Constitution

2.3 . . . Outline the issues and compromises that were central to the writing ofthe U.S. Constitution.

On February 21, 1787, in the throes of economic turmoil and with domestic tranquil-ity gone haywire, the Congress passed an official resolution. It called for a Constitu-tional Convention in Philadelphia for “the sole and express purpose of revising theArticles of Confederation.” However, many delegates that gathered in swelteringPhiladelphia on May 25, 1787, were prepared to take potentially treasonous steps topreserve the union. For example, on the first day the convention was in session,Edmund Randolph and James Madison of Virginia proposed fifteen resolutions cre-ating an entirely new government (later known as the Virginia Plan). Their enthusi-asm, however, was not universal. Many delegates, including William Paterson of NewJersey, considered these resolutions to be in violation of the convention’s charter, andproposed the New Jersey Plan, which took greater steps to preserve the Articles.

These proposals met heated debate on the convention’s floor. Eventually the VirginiaPlan triumphed following a declaration from Randolph that, “When the salvation of theRepublic is at stake, it would be treason not to propose what we found necessary.”

Though the basic structure of the new government was established, the work of theConstitutional Convention was not complete.These differences were resolved through aseries of compromises, and less than one hundred days after the meeting convened, theFramers had created a new government to submit to the electorate for its approval.

The Characteristics and Motives of the FramersThe fifty-five delegates who attended the Constitutional Convention labored longand hard that hot summer. Owing to the high stakes of their action, all of the conven-tion’s work was conducted behind closed doors. George Washington of Virginia, whowas unanimously elected the convention’s presiding officer, cautioned delegates not toreveal details of the convention even to their family members. The delegates agreed to

Shays’s RebellionA 1786 rebellion in which an armyof 1,500 disgruntled and angryfarmers led by Daniel Shays marchedto Springfield, Massachusetts, andforcibly restrained the state courtfrom foreclosing mortgages on their farms.

The Miracle at Philadelphia: Writing the U.S. Constitution 41

accompany Benjamin Franklin of Pennsylvania to all of his meals. They feared thatthe normally gregarious gentleman might get carried away with the mood or by liquorand inadvertently let news of the proceedings slip from his tongue.

All of the delegates to the Constitutional Convention were men; hence, they of-ten are referred to as the “Founding Fathers.” In this text, we generally refer to themas the Framers, because their work provided the framework for the new United Statesgovernment. Most of them were quite young; many were in their twenties and thir-ties, and only one—Franklin at eighty-one—was quite old. Seventeen owned slaves,with George Washington, George Mason, and John Rutledge owning the most.Thirty-one went to college, and seven signed both the Declaration of Independenceand the Constitution.

The Framers brought with them a vast amount of political, educational, legal, andbusiness experience. It is clear that they were an exceptional lot who ultimatelyproduced a brilliant constitution, or document establishing the structure, functions,and limitations of a government.

However, debate about the Framers’ motives filled the air during the ratificationstruggle and has provided grist for the mill of historians and political scientists overthe years. In his Economic Interpretation of the Constitution of the United States (1913),Charles A. Beard argued that the 1780s were a critical period not for the nation as awhole, but rather for business owners who feared that a weak, decentralized govern-ment could harm their economic interests.9 Beard argued that the merchants wanteda strong national government to promote industry and trade, to protect private prop-erty, and to ensure payment of the public debt—much of which was owed to them.Therefore, according to Beard, the Constitution represents “an economic documentdrawn with superb skill by men whose property interests were immediately at stake.”10

By the 1950s, this view had fallen into disfavor when other historians were unable tofind direct links between wealth and the Framers’ motives for establishing the Constitu-tion. Others faulted Beard’s failure to consider the impact of religion and individual viewsabout government.11 In the 1960s, however, another group of historians began to arguethat social and economic factors were, in fact, important motives for supporting the Con-stitution. In The Anti-Federalists (1961), Jackson Turner Main posited that while theConstitution’s supporters might not have been the united group of creditors suggested byBeard, they were wealthier, came from higher social strata, and had greater concern formaintaining the prevailing social order than the general public.12 In 1969, GordonS. Wood’s The Creation of the American Republic resurrected this debate. Wood deempha-sized economics to argue that major social divisions explained different groups’ supportfor (or opposition to) the new Constitution. He concluded that the Framers were repre-sentative of a class that favored order and stability over some of the more radical ideasthat had inspired the American Revolutionary War and the break with Britain.13

The Virginia and New Jersey PlansThe less populous states were concerned with being lost in any new system of govern-ment where states were not treated as equals regardless of population. It is not surpris-ing that a large state and then a small one, Virginia and New Jersey, respectively,weighed in with ideas about how the new government should operate.

The Virginia Plan, proposed by Edmund Randolph, and written by James Madison,called for a national system based heavily on the European nation-state model,wherein the national government derives its powers from the people and not from themember states.

Its key features included:

■ Creation of a powerful central government with three branches—the legislative,executive, and judicial.

constitutionA document establishing the struc-ture, functions, and limitations of agovernment.

Virginia PlanThe first general plan for the Con-stitution offered in Philadelphia. Itskey points were a bicameral legisla-ture, and an executive and a judiciarychosen by the national legislature.


■ A two-house legislature with one house elected directly by the people, the otherchosen from among persons nominated by the state legislatures.

■ A legislature with the power to select the executive and the judiciary.

In general, smaller states such as New Jersey and Connecticut felt comfortablewith the arrangements under the Articles of Confederation. These states offeredanother model of government, the New Jersey Plan. Its key features included:

■ Strengthening the Articles, not replacing them.■ Creating a one-house legislature with one vote for each state and with represen-

tatives chosen by state legislatures.■ Giving Congress the power to raise revenue from duties on imports and from

postal service fees.■ Creating a Supreme Court with members appointed for life by the executive officers.

Constitutional CompromisesThe final Constitution was shaped by a series of compromises. Two of these were par-ticularly important. Below, we discuss the Great Compromise, which concerned theform of the new government, and the Three-Fifths Compromise, which dealt withrepresentation.

THE GREAT COMPROMISE The most serious disagreement between the Virginiaand New Jersey plans concerned state representation in Congress. When a deadlockloomed, Connecticut offered its own compromise. Representation in the lower housewould be determined by population, and each state would have an equal vote in theupper house. Again, there was a stalemate.

A committee to work out an agreement soon reported back what became knownas the Great Compromise. Taking ideas from both the Virginia and New Jerseyplans, it recommended:

■ A two-house, or bicameral, legislature.■ In one house of the legislature (later called the House of Representatives), there

would be fifty-six representatives—one representative for every 30,000inhabitants. Representatives would be elected directly by the people.

■ That house would have the power to originate all bills for raising and spendingmoney.

■ In the second house of the legislature (later called the Senate), each state wouldhave an equal vote, and representatives would be selected by the state legislatures.

■ In dividing power between the national and state governments, national powerwould be supreme.14

As Benjamin Franklin summarized it:The diversity of opinions turns on two points. If a proportional representation takesplace, the small states contend that their liberties will be in danger. If an equality of votesis to be put in its place, large states say that their money will be in danger. . . . When abroad table is to be made and the edges of a plank do not fit, the artist takes a little fromboth sides and makes a good joint. In like manner, both sides must part with some oftheir demands, in order that they both join in some accommodating position.15

The Great Compromise ultimately met with the approval of all states in atten-dance. The smaller states were pleased because they got equal representation in the

Great CompromiseThe final decision of the Constitu-tional Convention to create a two-house legislature with the lowerhouse elected by the people and withpowers divided between the twohouses. It also made national lawsupreme.

New Jersey PlanA framework for the Constitutionproposed by a group of small states.Its key points were a one-house leg-islature with one vote for each state,a Congress with the ability to raiserevenue, and a Supreme Court withmembers appointed for life.

The Miracle at Philadelphia:Writing the U.S.Constitution 43

Senate; the larger states were satisfied with the proportional representation inthe House of Representatives. The small states then would dominate the Senate whilethe large states, such as Virginia and Pennsylvania, would control the House. But, be-cause both houses had to pass any legislation, neither body could dominate the other.THE ISSUE OF SLAVERY The Great Compromise dealt with one major concern ofthe Framers—how best to treat the differences in large and small states—but otherproblems stemming largely from regional differences remained. Slavery, which formedthe basis of much of the southern states’ cotton economy, was one of the thorniest is-sues to address.To reach an agreement on the Constitution, the Framers had to craft acompromise that balanced southern commercial interests with comparable northernconcerns. Eventually the Framers agreed that Northerners would support continuingthe slave trade for twenty more years, as well as a twenty-year ban on taxing exports toprotect the cotton trade, while Southerners consented to a provision requiring only amajority vote on navigation laws, and the national government was given the author-ity to regulate foreign commerce. It was also agreed that the Senate would have thepower to ratify treaties by a two-thirds majority, which assuaged the fears of southernstates, who made up more than one-third of the nation.THE THREE-FIFTHS COMPROMISE One major conflict had yet to be resolved: howto determine state population for purposes of representation in the House of Repre-sentatives. Slaves could not vote, but the southern states wanted them included for pur-poses of determining population. After considerable dissension, it was decided thatpopulation for purposes of representation and the apportionment of direct taxes wouldbe calculated by adding the “whole Number of Free Persons” to “three-fifths of all otherPersons.” “All other Persons” was the delegates’ euphemistic way of referring to slaves.Known as the Three-Fifths Compromise, this highly political deal assured that theSouth would hold 47 percent of the House—enough to prevent attacks on slavery butnot so much as to foster the spread of slavery northward.

Unfinished Business: The Executive BranchThe Framers next turned to fashioning an executive branch. While they agreed on theidea of a one-person executive, they could not settle on the length of the term ofoffice, nor on how the chief executive should be selected. With Shays’s Rebellion stillfresh in their minds, the delegates feared putting too much power, including selectionof a president, into the hands of the lower classes. At the same time, representativesfrom the smaller states feared that the selection of the chief executive by the legisla-ture would put additional power into the hands of the large states.

Amid these fears, the Committee on Unfinished Portions, whose sole responsibil-ity was to iron out problems and disagreements concerning the office of chief execu-tive, conducted its work. The committee recommended that the presidential term ofoffice be fixed at four years instead of seven, as had earlier been proposed. The com-mittee also made it possible for a president to serve more than one term.

The Framers also created the Electoral College as a mechanism for selecting thechief executive of the new nation.The Electoral College system gave individual states akey role, because each state would select electors equal to the number of representativesit had in the House and Senate. It was a vague compromise that removed election ofthe president and vice president from both the Congress and the people and put it inthe hands of electors whose method of selection would be left to the states. As Alexan-der Hamilton noted in Federalist No. 68, the Electoral College was fashioned to avoidthe “tumult and disorder” that the Framers feared could result if the masses were al-lowed to vote directly for president. Instead, the selection of the president was left to asmall number of men (the Electoral College) who “possess[ed] the information anddiscernment requisite” to decide, in Hamilton’s words, the “complicated” business ofselecting the president. (To learn more about the Electoral College, see chapter 13.)

Three-Fifths CompromiseAgreement reached at the Constitu-tional Convention stipulating thateach slave was to be counted asthree-fifths of a person for purposesof determining population for repre-sentation in the U.S. House of Representatives.


In drafting the new Constitution, the Framers also were careful to include a pro-vision for removal of the chief executive. The House of Representatives was given thesole responsibility of investigating and charging a president or vice president with“Treason, Bribery, or other high Crimes and Misdemeanors.” A majority vote thenwould result in issuing articles of impeachment against the president or vice president.In turn, the Senate was given sole responsibility to try the president or vice presidenton the charges issued by the House. A two-thirds vote of the Senate was required toconvict and remove the president or the vice president from office. The chief justice ofthe United States was to preside over the Senate proceedings in place of the vice pres-ident (that body’s constitutional leader) to prevent any conflict of interest on the vicepresident’s part (To learn more about the Senate, see chapter 7).

The U.S. Constitution2.4 . . . Analyze the underlying principles of the U.S. Constitution.

The U.S. Constitution’s opening line, “We the People,” ended, at least for the time be-ing, the question of from where the government derived its power: it came directlyfrom the people. The Constitution next explained the need for the new outline ofgovernment: “in Order to form a more perfect Union” indirectly acknowledged theweaknesses of the Articles of Confederation in governing a growing nation. Next, theoptimistic goals of the Framers for the new nation were set out: to “establish Justice,insure domestic Tranquility, provide for the common defence, promote the generalWelfare, and secure the Blessings of Liberty to ourselves and our Posterity;” followedby the formal creation of a new government: “do ordain and establish this Constitu-tion for the United States of America.”

On September 17, 1787, the Constitution was approved by the delegates from alltwelve states in attendance. While the completed document did not satisfy all the del-egates, of the fifty-five delegates who attended some portion of the meetings, thirty-nine ultimately signed it. The sentiments uttered by Benjamin Franklin probably wellreflected those of many others: “Thus, I consent, Sir, to this Constitution because Iexpect no better, and because I am not sure that it is not the best.”16

The Basic Principles of the ConstitutionThe proposed structure of the new national government owed much to the writings ofthe French philosopher Montesquieu (1689–1755), who advocated distinct functions foreach branch of government, called separation of powers, with a system of checks andbalances between each branch.The Constitution’s concern with the distribution of powerbetween states and the national government also reveals the heavy influence of politicalphilosophers, as well as the colonists’ experience under the Articles of Confederation.17

FEDERALISM The question before and during the convention was how much powerstates would give up to the national government. Given the nation’s experiences underthe Articles of Confederation, the Framers believed that a strong national governmentwas necessary for the new nation’s survival. However, they were reluctant to create apowerful government after the model of Great Britain, the country from which they hadjust won their independence. Its unitary system was not even considered by thecolonists. Instead, they employed a system (now known as the federal system) that di-vides the power of government between a strong national government and the individ-ual states, with national power being supreme. This system was based on the principlethat the federal, or national, government derived its power from the citizens, not thestates, as the national government had done under the Articles of Confederation.

Opponents of this system feared that a strong national government would infringeon their liberty. But, supporters of a federal system, such as James Madison, argued that

separation of powersA way of dividing the power of government among the legislative,executive, and judicial branches, eachstaffed separately, with equality andindependence of each branchensured by the Constitution.checks and balancesA constitutionally mandated struc-ture that gives each of the threebranches of government somedegree of oversight and control overthe actions of the others.federal systemSystem of government where thenational government and stategovernments share power, derive allauthority from the people, and thepowers of the government are speci-fied in a constitution.

The U.S. Constitution 45

a strong national government with distinct state governments could, if properly di-rected by constitutional arrangements, actually be a source of expanded liberties andnational unity.The Framers viewed the division of governmental authority between thenational government and the states as a means of checking power with power, and pro-viding the people with double security against governmental tyranny. Later, the passageof the Tenth Amendment, which stated that powers not given to the national govern-ment were reserved by the states or the people, further clarified the federal structure.SEPARATION OF POWERS James Madison and many of the Framers clearly fearedputting too much power into the hands of any one individual or branch of govern-ment. Madison’s famous words, “Ambition must be made to counteract ambition,”were widely believed at the Constitutional Convention.

Separation of powers is simply a way of parceling out power among the threebranches of government. Its three key features are:

1. Three distinct branches of government: the legislative, the executive, and the judicial.2. Three separately staffed branches of government to exercise these functions.3. Constitutional equality and independence of each branch.

As illustrated in Figure 2.2, the Framers were careful to create a system in whichlaw-making, law-enforcing, and law-interpreting functions were assigned to inde-pendent branches of government. Only the legislature has the authority to make laws;

JUDICIAL BRANCH POWERSInterpret federal laws and U.S. ConstitutionReview the decisions of lower state and federal courts

Judicial Checks on the Legislative

Rule federal and state laws unconstitutional

Legislative Checks on the Judicial Change the number and

jurisdiction of federal courts Impeach federal judges

Propose constitutional amendments to override judicial decisions

Executive Checks on the JudicialAppoint federal judges

Refuse to implement decisions

Judicial Checks on the Executive

Declare executive branch actions unconstitutional

Chief justice presides over impeachment trial

Executive Checks on the LegislativeVeto legislation

Call Congress into special sessionImplement (or fail to implement) laws

passed by Congress

Legislative Checks on the ExecutiveImpeach the president

Reject legislation or funding the president wantsRefuse to confirm nominees or approve treaties*

Override the president’s veto by a two-thirds voteEXECUTIVE BRANCH POWERS

Enforce federal laws and court ordersPropose legislation to CongressMake foreign treatiesNominate officers of the United States government and federal judgesServe as commander in chief of the armed forcesPardon people convicted in federal courts or grant reprieves

LEGISLATIVE BRANCH POWERSPass all federal lawsPass the federal budgetDeclare warEstablish lower federal courts and the number of judges

*This power belongs to the Senate only.

Figure 2.2 What are the separation of powers and checks and balances under the U.S. Constitution?

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the chief executive enforces laws; and the judiciary interprets them. Moreover, initially,members of the House of Representatives, members of the Senate, the president, andmembers of the federal courts were selected by and were therefore responsible to dif-ferent constituencies. Madison believed that the scheme devised by the Framers woulddivide the offices of the new government and their methods of selection among manyindividuals, providing each office holder with the “necessary means and personal mo-tives to resist encroachment” on his or her power. The Constitution originally placedthe selection of senators directly with state legislators, making them more accountableto the states. The Seventeenth Amendment, ratified in 1913, however, called for di-rect election of senators by the voters, making them directly accountable to the peo-ple, thereby making the system more democratic.

The Framers could not have foreseen the intermingling of governmental func-tions that has since evolved. Locke, in fact, cautioned against giving a legislature theability to delegate its powers. In Article I of the Constitution, the legislative power isvested in the Congress. But, the president is also given legislative power via his abilityto veto legislation, although his veto can be overridden by a two-thirds vote in Con-gress. Judicial interpretation also helps to clarify the language or implementation oflegislation enacted through this process.

So, instead of a pure system of separation of powers, a symbiotic, or interdepend-ent, relationship among the three branches of government has existed from the begin-ning. Or, as one scholar has explained, there are “separated institutions sharingpowers.”18 While Congress still is entrusted with making the laws, the president, as asingle person who can easily capture the attention of the media and the electorate, re-tains tremendous power in setting the agenda and proposing legislation. And, al-though the Supreme Court’s major function is to interpret the Constitution, itsinvolvement in the 2000 presidential election, which effectively decided the electionin favor of George W. Bush, and its decisions affecting criminal procedure, reproduc-tive rights, and other issues have led many critics to charge that it has surpassed itsconstitutional authority and become, in effect, a law-making body.

CHECKS AND BALANCES The separation of powers among the three branches ofthe national government is not complete. According to Montesquieu and the Framers,the powers of each branch (as well as the two houses of the national legislature andbetween the states and the national government) could be used to check the powers ofthe other two branches of government. The power of each branch of government ischecked, or limited, and balanced because the legislative, executive, and judicialbranches share some authority, and no branch has exclusive domain over any singleactivity. The creation of this system allowed the Framers to minimize the threat oftyranny from any one branch. Thus, for almost every power granted to one branch, anequal control was established in the other two branches. For example, although Presi-dent George W. Bush, as the commander in chief, had the power to deploy Americantroops to Iraq in 2003, he needed authorization from Congress, under the War Pow-ers Act passed in 1973, to keep the troops in the Middle East for longer than ninetydays. Similarly, to pay for this mission, the president had to ask Congress to appropri-ate funds, which it did in the form of an initial $87 billion supplemental appropria-tions bill and additional funds.

The Articles of the ConstitutionThe document finally signed by the Framers condensed numerous resolutions into aPreamble and seven separate articles remedying many of the deficiencies within theArticles of Confederation. (To learn more about the differences between the Articlesof Confederation and the Constitution, see Table 2.1.) The first three articles estab-lished the three branches of government, defined their internal operations, and

The U.S. Constitution 47

clarified their relationships with one another. All branches of government weretechnically considered equal, yet some initially appeared more equal than others. Theorder of the articles, and the detail contained in the first three, reflects the Framers’concern that these branches of government might abuse their powers. The fourremaining articles define the relationships among the states, declare national law to besupreme, and set out methods of amending the Constitution.

ARTICLE I: THE LEGISLATIVE BRANCH Article I vests all legislative powers in theCongress and establishes a bicameral legislature, consisting of the Senate and theHouse of Representatives. It also sets out the qualifications for holding office in eachhouse, the terms of office, the methods of selection of representatives and senators, andthe system of apportionment among the states to determine membership in the Houseof Representatives. Article I, section 2, specifies that an “enumeration” of the citizenrymust take place every ten years in a manner to be directed by the U.S. Congress.

One of the most important sections of Article I is section 8. It carefully lists thepowers the Framers wished the new Congress to possess.These specified or enumeratedpowers contain many key provisions that had been denied to the Continental Congressunder the Articles of Confederation. For example, one of the major weaknesses of the

enumerated powersSeventeen specific powers granted toCongress under Article I, section 8,of the Constitution.

Table 2.1 How do the Articles of Confederation and the U.S. Constitution compare to one another?

Articles of Confederation Constitution

Formal name of the nation The United States of America Not specified, but referred to in the Preambleas “the United States of America”

Legislature Unicameral, called Congress Bicameral, called Congress, divided into theHouse of Representatives and the Senate

Members of Congress Between two and seven members per state Two senators per state, representatives appor-tioned according to population of each state

Voting in Congress One vote per state One vote per representative or senator

Appointment of members All appointed by state legislatures, in the manner each legislature directed

Representatives elected by popular vote; senators appointed by state legislatures

Term of legislative office One year Two years for representatives, six for senators

Term limit for legislative office No more than three out of every six years None

When Congress is not in session A Committee of States had the full powers of Congress

The president of the United States can call forCongress to assemble

Chair of legislature President of Congress Speaker of the House of Representatives; U.S.vice president is president of the Senate

Executive None President

National judiciary Maritime judiciary established—other courts left tostates

Supreme Court established, as well as othercourts Congress deems necessary

Adjudicator of disputes between states Congress U.S. Supreme Court

New states Admitted upon agreement of nine states (specialexemption provided for Canada)

Admitted upon agreement of majority of Congress

Amendment When agreed upon by all states When agreed upon by three-fourths of thestates

Navy Congress authorized to build a navy; states authorized to equip warships to counter piracy

Congress authorized to build a navy; states notallowed to keep ships of war

Army Congress to decide on size of force and to requisitiontroops from each state according to population

Congress authorized to raise and supportarmies

Power to coin money United States and the states United States only

Taxes Apportioned by Congress, collected by the states Laid and collected by Congress

Ratification Unanimous consent required Consent of nine states required


Articles was Congress’s lack of authority to deal with trade wars. The Constitutionremedied this problem by authorizing Congress to “regulate Commerce with foreignNations, and among the several States.” Congress was also given the authority to coinand raise money.

After careful enumeration of seventeen powers of Congress in Article I, section 8,a final, general clause authorizing Congress to “make all Laws which shall be neces-sary and proper for carrying into Execution the foregoing Powers” was added to Arti-cle I. Often referred to as the elastic clause, the necessary and proper clause has beena source of tremendous congressional activity never anticipated by the Framers,including the passage of laws that regulate the environment, welfare programs, educa-tion, and communication.

The necessary and proper clause is the basis for the implied powers that Con-gress uses to execute its other powers. Congress’s enumerated power to regulate com-merce has been linked with the necessary and proper clause in a variety of U.S.Supreme Court cases. As a result, laws banning prostitution where travel across statelines is involved, regulating trains and planes, establishing federal minimum-wage andmaximum-hour laws, and mandating drug testing for certain workers have passedconstitutional muster.

ARTICLE II: THE EXECUTIVE BRANCH Article II vests the executive power, that is,the authority to execute the laws of the nation, in a president of the United States. Sec-tion 1 sets the president’s term of office at four years and explains the Electoral College.

It also states the qualifications for office and de-scribes a mechanism to replace the president incase of death, disability, or removal from office.

The powers and duties of the president are setout in section 3.Among the most important of theseare the president’s role as commander in chief ofthe armed forces, the authority to make treatieswith the consent of the Senate, and the authorityto “appoint Ambassadors, other public Ministersand Consuls, the Judges of the supreme Court, andall other Officers of the United States.”Other sec-tions of Article II instruct the president to reportdirectly to Congress “from time to time,” in whathas come to be known as the State of the UnionAddress, and to “take Care that the Laws be faith-fully executed.”Section 4 provides the mechanismfor removal of the president, vice president, andother officers of the United States for “Treason,Bribery,or other high Crimes and Misdemeanors.”

Article II also limits the presidency to natu-ral-born citizens. A new amendment would beneeded to change that qualification. (To learnabout the natural-born citizen clause, see Jointhe Debate: Should the Equal Opportunity toGovern Amendment Be Passed?)

ARTICLE III: THE JUDICIAL BRANCHArticle III establishes a Supreme Court and de-fines its jurisdiction. During the Philadelphiameeting, the small and large states differed sig-nificantly as to the desirability of an independ-ent judiciary and on the role of state courts inthe national court system. The smaller states

Who is the audience for the president’s State of the Union Address?When the Framers, in Article II of the Constitution, required thepresident to report directly to Congress “from time to time,” they neverimagined that millions of people would tune in to the president’s addresscarried live on television, radio, and the Internet. Here, President BarackObama hands copies of his speech to Vice President Joe Biden andSpeaker of the House Nancy Pelosi in 2009.

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necessary and proper clauseThe final paragraph of Article I,section 8, of the Constitution, whichgives Congress the authority to passall laws “necessary and proper” tocarry out the enumerated powersspecified in the Constitution; alsocalled the elastic clause.implied powersPowers derived from the enumeratedpowers and the necessary and properclause. These powers are not statedspecifically but are considered to bereasonably implied through the exercise of delegated powers.

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Join the DEBATE Should the Equal Opportunity to GovernAmendment Be Passed?

Article II, section 1, clause 5, of the U.S. Constitution declares: “No person except a natural-borncitizen, or a citizen of the United States at the time of the Adoption of this Constitution, shall be eligibleto the Office of President.” In drafting this restriction, the Framers expressed concern that, as ChiefJustice John Jay argued, the duty of commander in chief was too important to be given to a foreign-bornperson—the potential conflict of interest, danger, and appearance of impropriety in matters of war andforeign policy should not be left to chance.

However, even though the requirement that the president be a “natural-born” citizen is constitution-ally mandated, the term “natural-born” has never been defined. Currently, naturalized citizens (thosewho were citizens of a foreign country but became U.S. citizens and pledged allegiance to this country)are not allowed to serve as president.

A constitutional amendment proposed by Senator Orrin Hatch (R–UT) in 2004 would have strickenthe natural-born citizen clause from the Constitution. The amendment took into account the Framers’fear of foreign intervention and of divided loyalty by placing a lengthy citizenship requirement—twentyyears—before naturalized citizens would become eligible to run for presidential office. Although theamendment was not passed by Congress, the proposal could be made again. Should the Equal Opportu-nity to Govern Amendment be passed?

To develop an ARGUMENT FOR passage of theEqual Opportunity to Govern Amendment, thinkabout how:

■ The United States is a nation of immigrants. Wouldopening the presidency to naturalized citizens expandthe talent pool of presidential nominees, thus increas-ing the quality and choice of presidential candidatesfor the American people?

■ Naturalized citizens have all of the other rights andfreedoms accorded to natural-born citizens. Does therestriction on naturalized citizens being elected presi-dent deny them equality of opportunity? If the Consti-tution allows foreign-born citizens to attain otherpolitical offices, why should naturalized citizens bedenied the presidency?

■ The Constitution has been amended to addressother areas of discrimination, including expandingthe franchise to women and African Americans.Is the Equal Opportunity to Govern Amendment another example of the evolution of popular opinion and political values since the Constitution’sratification?

To develop an ARGUMENT AGAINST passage ofthe Equal Opportunity to Govern Amendment,think about how:

■ Concerns over the potential undue influence offoreign governments are longstanding. How did therevolutionary experience influence the Framers’ viewsof the danger of foreign influence in U.S. politics?Were the Framers correct in assuming foreign govern-ments would attempt to manipulate American politics?In what ways would foreign-born citizens be morelikely to suffer from conflicted and divided loyaltiesthan natural-born citizens?

■ There is a fundamental difference between being bornin the United States and being a naturalized citizen ofthe United States. How do Chief Justice John Jay’s con-cerns reflect this difference? Do restrictions on whocan serve as president provide institutional safeguardsagainst presidential corruption?

■ Only twenty-seven amendments have passed since theadoption of the U.S. Constitution. Is the proposedamendment a worthwhile endeavor, with so manyother pressing issues facing the country? Should theconstitutional amendment process be reserved for areas of more immediate public concern?


feared that a strong unelected judiciary would trample on their liberties. In compromise,Congress was permitted, but not required, to establish lower national courts. Thus,state courts and the national court system would exist side by side with distinct areasof authority. Federal courts were given authority to decide cases arising under federallaw. The U.S. Supreme Court was also given the power to settle disputes betweenstates, or between a state and the national government. Ultimately, it was up to theSupreme Court to determine what provisions of the Constitution actually meant.

Although some delegates to the convention urged that the president be allowedto remove federal judges, ultimately judges were given appointments for life, presum-ing “good behavior.” And, like the president’s, their salaries cannot be lowered whilethey hold office. This provision was adopted to ensure that the legislature did not attempt to punish the Supreme Court or any other judges for unpopular decisions.

ARTICLES IV THROUGH VII The remainder of the articles in the Constitutionattempted to anticipate problems that might occur in the operation of the new na-tional government as well as its relations to the states. Article IV begins with what iscalled the full faith and credit clause, which mandates that states honor the laws andjudicial proceedings of the other states. Article IV also includes the mechanisms foradmitting new states to the union.

Article V (discussed in greater detail on p. 74) specifies how amendments can beadded to the Constitution. The Bill of Rights, which added ten amendments to theConstitution in 1791, was one of the first items of business when the First Congressmet in 1789.

Article VI contains the supremacy clause, which asserts the basic primacy of theConstitution and national law over state laws and constitutions. The supremacy clauseprovides that the “Constitution, and the laws of the United States” as well as all treatiesare to be the supreme law of the land. All national and state officers and judges arebound by national law and take oaths to support the federal Constitution above any statelaw or constitution. Because of the supremacy clause, any legitimate exercise of nationalpower supersedes any state laws or action, in a process that is called preemption, furtherdiscussed in chapter 3. Without the supremacy clause and the federal courts’ ability toinvoke it, the national government would have little actual enforceable power; thus,many commentators call the supremacy clause the linchpin of the entire federal system.

Mindful of the potential problems that could occur if church and state were tooenmeshed, Article VI also specifies that no religious test shall be required for holdingany office. This mandate is strengthed by the separation of church and state guaranteethat was added to the Constitution when the First Amendment was ratified.

The seventh and final article of the Constitution concerns the procedures for rat-ification of the new Constitution: nine of the thirteen states would have to agree to, orratify, its new provisions before it would become the supreme law of the land.

The Drive for Ratification of the U.S. Constitution

2.5 . . . Explain the conflicts that characterized the drive for ratification ofthe U.S. Constitution.

While delegates to the Constitutional Convention labored in Philadelphia, theCongress of the Confederation continued to govern the former colonies under theArticles of Confederation. The day after the Constitution was signed, William Jack-son, the secretary of the Constitutional Convention, left for New York City, then thenation’s capital, to deliver the official copy of the document to the Congress. He also

supremacy clausePortion of Article VI of the U.S.Constitution mandating thatnational law is supreme to (that is,supersedes) all other laws passed bythe states or by any other subdivisionof government.

full faith and credit clauseSection of Article IV of the Consti-tution that ensures judicial decreesand contracts made in one state willbe binding and enforceable in anyother state.

The Drive for Ratification of the U.S. Constitution 51

Table 2.2 What were the differences between the Federalists and the Anti-Federalists?

Federalists Anti-Federalists

Who were they? Property owners, landed rich, merchants of Northeast and Middle Atlantic states

Small farmers, shopkeepers, laborers

Political philosophy Elitist; saw themselves and those of their class as most fit to govern (others were to be governed)

Believed in the decency of “the common man” and inparticipatory democracy; viewed elites as corrupt;sought greater protection of individual rights

Type of government favored Powerful central government; two-house legislature; upper house (six-year term) further removed from thepeople, whom they distrusted

Wanted stronger state governments (closer to the people) at the expense of the powers of the nationalgovernment; sought smaller electoral districts, frequentelections, referendum and recall, and a large unicamerallegislature to provide for greater class and occupationalrepresentation

Alliances Pro-British, anti-French Anti-British, pro-French

FederalistsThose who favored a strongernational government and supportedthe proposed U.S. Constitution; laterbecame the first U.S. political party.Anti-FederalistsThose who favored strong state gov-ernments and a weak national gov-ernment; opposed the ratification ofthe U.S. Constitution.

took with him a resolution of the delegates calling upon each of the states to vote onthe new Constitution. Anticipating resistance from the representatives in the statelegislatures, however, the Framers required the states to call special ratifying conven-tions to consider the proposed Constitution.

Jackson carried a letter from General George Washington with the proposed Consti-tution. In a few eloquent words, Washington summed up the sentiments of the Framersand the spirit of compromise that had permeated the long weeks in Philadelphia:

That it will meet the full and entire approbation of every state is not perhaps to beexpected, but each [state] will doubtless consider, that had her interest alone beenconsulted, the consequences might have been particularly disagreeable or injurious toothers; that it is liable to as few exceptions as could reasonably have been expected,we hope and believe; that it may promote lasting welfare of that country so dear to usall, and secure her freedom and happiness is our ardent wish.19

The Congress of the Confederation immediately accepted the work of the conven-tion and forwarded the proposed Constitution to the states for their vote. It was by nomeans certain, however, that the new Constitution would be adopted. From the fall of1787 to the summer of 1788, the proposed Constitution was debated hotly around thenation. State politicians understandably feared a strong central government. Farmersand other working-class people were fearful of a distant national government. Thosewho had accrued substantial debts during the economic chaos following the Revolu-tionary War feared that a new government with a new financial policy would plungethem into even greater debt. The public in general was very leery of taxes—these werethe same people who had revolted against the king’s taxes. At the heart of many of theirconcerns was an underlying fear of the massive changes that would be brought aboutby a new system. Favoring the Constitution were wealthy merchants, lawyers, bankers,and those who believed that the new nation could not continue to exist under the Arti-cles of Confederation. For them, it all boiled down to one simple question offered byJames Madison: “Whether or not the Union shall or shall not be continued.”

Federalists Versus Anti-FederalistsAlmost as soon as the ink was dry on the last signature to the Constitution, those whofavored the new strong national government chose to call themselves Federalists.They were well aware that many people still generally opposed the notion of a strongnational government. They did not want to risk being labeled nationalists, so they triedto get the upper hand in the debate by nicknaming their opponents Anti-Federalists.As noted in Table 2.2, Anti-Federalists argued that they simply wanted to protectstate governments from the tyranny of a too powerful national government.20


Federalists and Anti-Federalists participated in the mass meetings that were heldin state legislatures to discuss the pros and cons of the new plan. Tempers ran high atthese meetings, and fervent debates were published in newspapers, which played apowerful role in the adoption process. The entire Constitution, in fact, was printed inthe Pennsylvania Packet just two days after the convention’s end. Other major papersquickly followed suit. Soon, opinion pieces on both sides of the adoption issue beganto appear around the nation, often written under pseudonyms such as “Caesar” or“Constant Reader,” as was the custom of the day.

The Federalist PapersOne name stood out from all the rest: “Publius” (Latin for “the people”). BetweenOctober 1787 and May 1788, eighty-five essays written under that pen name routinelyappeared in newspapers in New York, a state where ratification was in doubt. Mostwere written by Alexander Hamilton and James Madison. Hamilton, a young, fieryNew Yorker born in the British West Indies, wrote fifty-one; Madison, a Virginian wholater served as the fourth president, wrote twenty-six; jointly they penned another three.John Jay, also of New York, and later the first chief justice of the United States, wrotefive of the pieces.These eighty-five essays became known as The Federalist Papers.

Today, The Federalist Papers are considered masterful explanations of the Framers’intentions as they drafted the new Constitution. At the time, although they were

reprinted widely, they were far too theoretical to have much im-pact on those who would ultimately vote on the proposed Consti-tution. Dry and scholarly, they lacked the fervor of much of thepolitical rhetoric that was then in use. The Federalist Papers did,however, highlight the reasons for the structure of the new gov-ernment and its benefits. According to Federalist No. 10, for exam-ple, the new Constitution was called “a republican remedy for thedisease incident to republican government.” These musings ofMadison, Hamilton, and Jay continue to be the clearest articula-tion of the political theories and philosophies that lie at the heartof our Constitution.

Forced on the defensive, the Anti-Federalists responded to TheFederalist Papers with their own series of letters written under thepen names “Brutus” and “Cato,” two ancient Romans famous fortheir intolerance of tyranny. These letters (actually essays) under-took a line-by-line critique of the Constitution, as did other works.

Anti-Federalists argued that a strong central governmentwould render the states powerless.21 They stressed the strengthsthe government had been granted under the Articles of Confed-eration, and argued that the Articles, not the proposed Constitu-tion, created a true federal system. Moreover, they argued that thestrong national government would tax heavily, that the U.S.Supreme Court would overwhelm the states by invalidating statelaws, and that the president eventually would have too muchpower as commander in chief of a large and powerful army.22

In particular, the Anti-Federalists feared the power of the na-tional government to run roughshod over the liberties of the people.They proposed that the taxing power of Congress be limited, thatthe executive be curbed by a council, that the military consist of statemilitias rather than a national force, and that the jurisdiction of theSupreme Court be limited to prevent it from reviewing and potentiallyoverturning the decisions of state courts. But, their most effective ar-gument concerned the absence of a bill of rights in the Constitution.James Madison answered these criticisms in Federalist Nos. 10 and51. (The texts of these two essays, along with Federalist No. 78, are

The Federalist PapersA series of eighty-five politicalessays written by Alexander Hamil-ton, James Madison, and John Jay insupport of ratification of the U.S.Constitution.

Why were The Federalist Papers written? The Federalist Papers highlighted the reasons for the structure of thenew government and its benefits. As seen on the coverpage, the papers had the approval of those at the Constitutional Convention.

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printed in Appendix II.) In Federalist No. 10, Madi-son pointed out that the voters would not alwayssucceed in electing “enlightened statesmen” as theirrepresentatives. The greatest threat to individual lib-erties would therefore come from factions within thegovernment, who might place narrow interests abovebroader national interests and the rights of citizens.While recognizing that no form of government couldprotect the country from unscrupulous politicians,Madison argued that the organization of the newgovernment would minimize the effects of politicalfactions. The great advantage of a federal system,Madison maintained, was that it created the “happycombination”of a national government too large to becontrolled by any single faction, and several state gov-ernments that would be smaller and more responsiveto local needs. Moreover, he argued in Federalist No.51 that the proposed federal government’s separationof powers would prohibit any one branch from eitherdominating the national government or violating therights of citizens.

Ratifying the ConstitutionDebate continued in the thirteen states as votes weretaken from December 1787 to June 1788, in accor-dance with the ratifying process laid out in ArticleVII of the proposed Constitution.Three states actedquickly to ratify the new Constitution. Two smallstates, Delaware and New Jersey, voted to ratify be-fore the large states could rethink the notion ofequal representation of the states in the Senate.Pennsylvania, where Federalists were well organized,was also one of the first three states to ratify. Massa-chusetts assented to the new government but tempered its support by calling for an im-mediate addition of amendments, including one protecting personal rights. NewHampshire became the crucial ninth state to ratify on June 21, 1788. This action com-pleted the ratification process outlined in Article VII of the Constitution and markedthe beginning of a new nation. But, New York and Virginia, which at that time ac-counted for more than 40 percent of the new nation’s population, had not yet ratifiedthe Constitution. Thus, the practical future of the new nation remained in doubt.

Hamilton in New York and Madison in Virginia worked feverishly to convince del-egates to their state conventions to vote for the new government. In New York, senti-ment against the Constitution ran high. In Albany, fighting resulting in injuries anddeath broke out over ratification. When news of Virginia’s acceptance of the Constitu-tion reached the New York convention, Hamilton finally was able to convince a majorityof those present to follow suit by a narrow margin of three votes. Both states also rec-ommended the addition of a series of structural amendments and a bill of rights.

North Carolina and Rhode Island continued to hold out against ratification. Bothhad recently printed new currencies and feared that values would plummet in a federalsystem where the Congress was authorized to coin money. On August 2, 1788, NorthCarolina became the first state to reject the Constitution on the grounds that no Anti-Federalist amendments were included. Soon after, in September 1789, owing much tothe Anti-Federalist pressure for additional protections from the national government,Congress submitted the Bill of Rights to the states for their ratification. North Carolina

The Drive for Ratification of the U.S. Constitution 53

Constitutions Around the WorldWhile most countries have written constitutions, a few do not.Great Britain relies on a variety of written documents and laws, in-cluding the Magna Carta, treaties, and court judgments, but it hasno single, formal, written constitution. Israel, too, has no formalconstitution, although its officials are trying to write one. Instead,Israel is governed by basic laws that outline how the governmentshould function and the rights of individuals.

All constitutions reflect philosophical ideas about the properscope of government and include both routine and highly sensitivetopics.The U.S. Constitution contains seven articles and twenty-onesections. This is far shorter than France’s constitution (ninety-twoarticles), as well as China’s (138 articles) and South Africa’s (243sections). The South African constitution deals with such symbolicmatters as the flag, the presidential oath of office, and how the national anthem will be determined. It also identifies South Africa’seleven official languages, bans racial and sexual discrimination, andestablishes an independent electoral commission and a commissionfor gender equality.

■ Is it better to have a very detailed constitution or one that laysout only basic and fundamental rules of government?

■ What might be some benefits and drawbacks to having anunwritten constitution versus a written one?

■ Should newly independent countries use the U.S.Constitution as a model? Why or why not?


then ratified the Constitution by a vote of194–77. Rhode Island, the only state thathad not sent representatives to Philadel-phia, remained out of the new nation until1790. Finally, under threats from its largestcities to secede from the state, the legisla-ture called a convention that ratified theConstitution by only two votes (34–32)—one year after George Washington becamethe first president of the United States.

The Bill of RightsOnce the Constitution was ratified, elec-tions were held. When Congress convened,it immediately sent a set of amendments tothe states for their ratification. An amend-ment authorizing the enlargement of theHouse of Representatives and another toprevent members of the House from rais-ing their own salaries failed to garner fa-vorable votes in the necessary three-fourthsof the states. The remaining ten amend-ments, known as the Bill of Rights, wereratified by 1791 in accordance with theprocedures set out in the Constitution.Sought by Anti-Federalists as a protectionfor individual liberties, they offered numer-ous specific limitations on the nationalgovernment’s ability to interfere with a

wide variety of personal liberties, some of which were already guaranteed by many stateconstitutions.These include freedom of expression, speech, press, religion, and assembly,guaranteed by the First Amendment. The Bill of Rights also contains numerous safe-guards for those accused of crimes.

Two of the amendments of the Bill of Rights were direct reactions to Britishrule—the right to bear arms (Second Amendment) and the right not to have soldiersquartered in private homes (Third Amendment). More general rights are also in-cluded in the Bill of Rights. The Ninth Amendment notes that these enumeratedrights are not inclusive, meaning they are not the only rights to be enjoyed by the peo-ple, and the Tenth Amendment states that powers not given to the national govern-ment are reserved by the states or the people.

TOWARD REFORM: Methods ofAmending the U.S. Constitution

2.6 . . . Distinguish between the methods for proposing and ratifyingamendments to the U.S. Constitution.

The Framers did not want to fashion a government that could be too influenced bythe whims of the people. Therefore, they made the formal amendment process a slowone to ensure that the Constitution was not impulsively amended. In keeping with

Bill of RightsThe first ten amendments to theU.S. Constitution, which largelyguarantee specific rights and liberties.

How does the Constitution get amended? In 1982, Gregory Watson, anundergraduate at the University of Texas, Austin, discovered an unratified amend-ment originally proposed by James Madison in 1789. Madison’s amendmentwould ensure that any salary increase for members of Congress could not takeeffect until the next session of Congress. Watson began a ten-year, $6,000 self-financed crusade to renew interest in the compensation amendment, which hadlanguished after the approval of only six states. Watson’s perseverance paid off: inMay 1992 the amendment was ratified by the requisite thirty-eight states andbecame part of the Constitution.

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this intent, only seventeen amendments have been added since the addition of the Billof Rights. However, informal amendments, prompted by judicial interpretation andcultural and social change, have had a tremendous impact on the Constitution.

Formal Methods of Amending the ConstitutionArticle V of the Constitution creates a two-stage amendment process: proposal and rat-ification.The Constitution specifies two ways to accomplish each stage. As illustrated inFigure 2.3, amendments to the Constitution can be proposed by: (1) a vote of two-thirdsof the members in both houses of Congress; or, (2) a vote of two-thirds of the state leg-islatures specifically requesting Congress to call a national convention to proposeamendments. (To learn more about the amendmentprocess, see The Living Constitution: Article V.)

The second method has never been used. His-torically, it has served as a fairly effective threat,forcing Congress to consider amendments thatmight otherwise never have been debated. In the1980s, for example, several states called on Con-gress to enact a balanced budget amendment. Toforestall the need for a special constitutional con-vention, in 1985 Congress enacted the Gramm-Rudman-Hollings Act, which called for a balancedbudget by the 1991 fiscal year. The act was laterruled unconstitutional by a three-judge districtcourt that declared that the law violated separationof powers principles.

The ratification process is fairly straightfor-ward. When Congress votes to propose an amend-ment, the Constitution specifies that the ratificationprocess must occur in one of two ways: (1) a favor-able vote in three-fourths of the state legislatures;or, (2) a favorable vote in specially called ratifyingconventions in three-fourths of the states.

The Constitution itself was ratified by thefavorable vote of nine states in specially called rati-fying conventions. The Framers feared that thepower of special interests in state legislatures wouldprevent a positive vote on the new Constitution.Since ratification of the Constitution, however,only one ratifying convention has been called. The

Figure 2.3 How can the U.S. Constitution be amended?

Amending ConstitutionsAmendments to the U.S. Constitution require a favorable vote inthree-fourths of the state legislatures or in ratifying conventionsin three-fourths of the states. In Australia, both houses of parlia-ment must approve an amendment, and a referendum must also be passed in a majority of states. The Australian constitutionhas been amended only eight times since it was ratified in 1900.In contrast, amending Germany’s constitution requires only atwo-thirds majority vote in both houses of parliament. Germany’smost recent constitution, approved in 1949, has been amendedfifty-seven times.

■ Is it better for a constitution to be difficult to amend or flexibleand easily amendable? Why?

■ Should citizens be given a direct vote in amending constitutions,or should the process be left to elected officials?

■ What are the advantages and disadvantages to a politicalsystem where frequent changes to the national constitution areconsidered normal?

Methods of Proposal Methods of Ratification

By two-thirds vote in bothhouses of Congress

By national constitutional convention called by Congress at the request of two-thirds of the state legislatures. (Thismethod never has been used to propose an amendment.)

Or

By legislatures in three-fourthsof the states

By conventions in three-fourthsof the states

Or

Usual method

Used once (21st Amendment)


The Living ConstitutionThe Congress, whenever two thirds of both houses shall deem itnecessary, shall propose amendments to this Constitution, or, onthe application of the legislatures of two thirds of the severalstates, shall call a convention for proposing amendments, which,in either case, shall be valid to all intents and purposes, as partof this Constitution, when ratified by the legislatures of threefourths of the several states, or by conventions in three fourthsthereof, as the one or the other mode of ratification may beproposed by the Congress.

—ARTICLE V

ith this article, the Framers acknowledged the potential need to change or amend the Con-

stitution. This article provides for two methods topropose amendments: by a two-thirds vote of bothhouses of Congress or by a two-thirds vote of thestate legislatures. It also specifies two alternativemethods of ratification of proposed amendments:by a three-quarters vote of the state legislatures, orby a similar vote in specially called state ratifyingconventions.

During the Constitutional Convention inPhiladelphia, the Framers were divided as to howfrequently or how easily the Constitution was to beamended. The original suggestion was to allow the document to be amended “when soever it shallseem necessary.” Some delegates wanted to entrustthis authority to the state legislatures; however, othersfeared that it would give states too much power.James Madison alleviated these fears by suggestingthat both Congress and the states have a role in theprocess.

In the late 1960s and early 1970s, leaders of thenew women’s rights movement sought passage of theEqual Rights Amendment (ERA).Their efforts were

rewarded when the ERA was approved in the Houseand Senate by overwhelming majorities in 1972 andthen sent out to the states for their approval. In spiteof tremendous lobbying, a strong anti-ERA movementemerged and the amendment failed to gain approvalin three-quarters of the state legislatures.

The failed battles for the ERA as well as otheramendments, including one to prohibit child laborand another to grant statehood to the District ofColumbia, underscore how difficult it is to amendthe Constitution. Thus, unlike the constitutions ofindividual states or many other nations, the U.S.Constitution rarely has been amended. Still, theERA has been proposed in every session ofCongress since 1923.

CRITICAL THINKING QUESTIONS1. What would it take to get an equal rights

amendment added to the U.S. Constitution?2. Does your state already have an equal rights

amendment? What does it guarantee?3. Are the rights of women best protected by state

or federal statute, or should they be protectedby constitutional amendment?

Eighteenth Amendment, which outlawed the sale of alcoholic beverages nationwide,was ratified by the first method—a vote in state legislatures. Millions of people brokethe law, others died from drinking homemade liquor, and still others made their for-tunes selling bootleg or illegal liquor. After a decade of these problems, Congress de-cided to act. An additional amendment—the Twenty-First—was proposed to repealthe Eighteenth Amendment. It was sent to the states for ratification, but with a call

W

for ratifying conventions, not a vote in the statelegislatures.23 Members of Congress correctlypredicted that the move to repeal the EighteenthAmendment would encounter opposition inthe state houses, which were largely controlledby conservative rural legislators. Thus, Con-gress’s decision to use the convention methodled to quick approval of the Twenty-FirstAmendment.

The intensity of efforts to amend the Con-stitution has varied considerably, depending onthe nature of the change proposed. Whereas theTwenty-First Amendment took only ten monthsto ratify, an equal rights amendment (ERA) wasintroduced in every session of Congress from1923 until 1972, when Congress finally voted fa-vorably for it. Even then, years of lobbying bywomen’s groups were insufficient to garner nec-essary state support. By 1982, the congression-ally mandated date for ratification, onlythirty-five states—three short of the number re-quired—had voted favorably on the amend-ment.24 Yet, it has been reintroduced everysession in a somewhat symbolic move.

One of the most recent, concerted effortswould amend the Constitution to prohibit flagburning. In 1989, the U.S. Supreme Court ruledin Texas v. Johnson that burning the Americanflag was a form of speech protected under theFirst Amendment.25 Since the Court’s initialruling, passing a constitutional amendment toprohibit flag burning has become one of the social issues Republicans have used tomobilize their base. So far, anti-flag-burning amendments have been unsuccessful.

Informal Methods of Amending the ConstitutionThe formal amendment process is not the only way that the Constitution has beenchanged over time. Judicial interpretation and cultural and social change also have hada major impact on the way the Constitution has evolved.

JUDICIAL INTERPRETATION As early as 1803, the Supreme Court declared inMarbury v. Madison that the federal courts had the power to nullify acts of the na-tion’s government when they were found to be in conflict with the Constitution.26

Over the years, this check on the other branches of government and on the states hasincreased the authority of the Court and significantly altered the meaning of variousprovisions of the Constitution, a fact that prompted President Woodrow Wilson tocall the Supreme Court “a constitutional convention in continuous session.” (To learnmore about the Supreme Court’s role in interpreting the Constitution see chapters5, 6, and 10.)

Today, some analysts argue that the original intent of the Framers, as evidenced inThe Federalist Papers, as well as in private notes taken by James Madison at the Consti-tutional Convention, should govern judicial interpretation of the Constitution.27 Othersargue that the Framers knew that a changing society needed an elastic, flexible document

Toward Reform: Methods of Amending the U.S. Constitution 57

Why are constitutional amendments repealed? For all its moral supportfrom groups such as the Women’s Christian Temperance Union (WCTU) (pic-tured below), whose members invaded bars to protest the sale of alcoholicbeverages, the Eighteenth (Prohibition) Amendment was a disaster. Among itsside effects was the rise of powerful crime organizations responsible for illegalsales of alcoholic beverages. Once proposed, it took only ten months to ratifythe Twenty-First Amendment, which repealed the Prohibition Amendment.

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that could adapt to the ages.28 In all likelihood, the vagueness of the document was pur-poseful. Those in attendance in Philadelphia recognized that they could not agree oneverything and that it was wiser to leave interpretation to future generations.

Law professor Mark V. Tushnet has offered a particularly stinging criticism of ju-dicial review and our reliance on the courts to interpret the law. He believes that un-der our present system, Americans are unwilling to enforce the provisions of theConstitution because they believe this is the sole province of the court system. If wewere to eliminate the deference given to court decisions, Tushnet argues, citizenswould be compelled to become involved in enforcing their Constitution, thereby cre-ating a system of populist constitutional law, and a more representative government.29

Constitution, States’ Rights Energizing Local Politics

By Adam D. Krauss

Critical Thinking Questions1. How was the Consti-

tution shaped by theFramers’ values andexperiences?

2. Should all Americancitizens have to befamiliar with theConstitution and otherfounding texts?

3. Are there groups inyour town that holdstudies of theConstitution?

May 30, 2010Foster’s Daily Democrat

www.citizen.com . . . Earlier this month, the conference room at St. Mary’s Church was packed for thefirst official meeting of the Dover 912 Project and a presentation on the dismantling of theAmerican republic by city resident Greg Vatistas. The 30-year-old self-employed contractorrejoiced that so many people came out to “talk liberty.” He said it was a sign of the times.

The 912 Project, brainchild of conservative commentator Glenn Beck, has spawned local groups dedicated to restoring what they see as the nation’s founding ideals.

“Everyone wants to do their part, but it’s hard to focus everybody,” Vatistas said. “Wecan’t leave this for anybody else. . . . We have to do the heavy lifting . . . we have to readthe original texts.”

A couple weeks earlier, on May 6, the Rochester 912 Project hosted a debate betweenRepublican U.S. Senate candidates that almost exclusively focused on the Constitution. After the debate, Jim Bender’s campaign spread a couple dozen pocket-sized copies of theConstitution on a table. Rochester businessman Gary Dworkin picked up a copy. He saidhe wanted to freshen his understanding of what “everybody was coming back to . . . as acore base of their beliefs.”

. . . The emergence of the Tea Party and 912 groups, and their focus on the Constitution,complicates things for candidates and campaigns, Spiliotes said. “They have to make a decision about how far they’re willing to go down that path and what it holds for them forpolitical value.”

. . . During the presentation, Vatistas drew two diagrams on a blackboard depicting thedifference between a simple and compound republic. Today the nation operates under asimple republic, where voters elect U.S. senators, as promised by the adoption of the 17thAmendment in 1913. Before that the nation was a compound republic, he said, with thepower to elect senators resting with state legislatures.

Before the change, Vatistas said, each state had an “enforcer of the 10th Amendment”whose loyalty to their home state meant they would serve as a protector of localsovereignty. Before the 17th Amendment, he said, senators brought the country each state’sideals and was in a position to resist changes opposed at home.

Several people left the talk charged to take some sort of action. They said they felt theyno longer had a choice.

“We were like sleeping giants,” said Dover City Councilor Catherine Cheney. “People hada faith that this could not be eroded. People had a certain faith in the government, so westayed at home . . . now we’re realizing our lives as we know them could be very differentunless we say this is our life, this is who we are, and the documents and the history backsthat up.” . . .

SOCIAL AND CULTURAL CHANGE Even the most far-sighted of those inattendance at the Constitutional Convention could not have anticipated thevast changes that have occurred in the United States. For example, although manypeople were uncomfortable with the Three-Fifths Compromise and others hoped forthe abolition of slavery, none could have imagined that an African American wouldone day become president of the United States. Likewise, few of the Framers couldhave anticipated the diverse roles that women would play in American society. TheConstitution has evolved to accommodate such social and cultural changes. Thus, al-though there is no specific amendment guaranteeing women equal protection of thelaw, the federal courts have interpreted the Constitution to prohibit many forms ofgender discrimination, thereby recognizing cultural and societal change.

Social change has also caused changes in the way institutions of government act.As problems such as the Great Depression appeared national in scope, Congress tookon more and more power at the expense of the states. In fact, Yale law professorBruce Ackerman argues that extraordinary times call for extraordinary measures suchas the New Deal that, in effect, amend the Constitution. Thus, congressional passage(and the Supreme Court’s eventual acceptance) of sweeping New Deal legislation thataltered the balance of power between the national government and the states trulychanged the Constitution without benefit of amendment.30 Still, in spite of massivechanges such as these, the Constitution survives, changed and ever changing aftermore than 200 years. (To learn more about how certain groups are using the Consti-tution to make a case for states’ rights, see Politics Now: Constitution, States’ RightsEnergizing Local Politics.)

What Should I Have LEARNED? 59

2.1 Trace the historical developments that led tothe colonists’ break with Great Britain and theemergence of the new American nation, p. 30. Settlers came to the New World for a variety of reasons,but most of these early inhabitants remained loyal to GreatBritain and considered themselves subjects of the king.Over the years, as new generations of Americans were bornon colonial soil, those ties weakened. A series of taxeslevied by the British crown ultimately led colonists toconvene the Second Continental Congress and to declaretheir independence.

2.2 Identify the key components of the Articles of Confederation and the reasons why it failed, p. 38. The Articles of Confederation (1781) created a loose leagueof friendship between the new national government and thestates. Numerous weaknesses in the new governmentquickly became apparent. Among the major flaws wereCongress’s inability to tax or regulate commerce, the absenceof an executive to administer the government, the lack of astrong central government, and no judiciary.

2.3 Outline the issues and compromises that werecentral to the writing of the U.S. Constitution, p. 40. When the weaknesses under the Articles of Confederationbecame apparent, the states called for a meeting to reform

them.The Constitutional Convention (1787) threw out the Articles of Confederation and fashioned a new, moreworkable form of government.The U.S. Constitution was the result of a series of compromises, including those overrepresentation, issues involving large and small states, slavery,and how to determine population. Compromises were alsomade about how members of each branch of governmentwere to be selected.The Electoral College was created to givestates a key role in the selection of the president.

2.4 Analyze the underlying principles of the U.S. Constitution, p. 44. The proposed U.S. Constitution created a federal systemthat drew heavily on Montesquieu’s ideas about separationof powers. These ideas concerned a way of parceling outpower among the three branches of government. A systemof checks and balances also prevented any one branch fromhaving too much power.

2.5 Explain the conflicts that characterized thedrive for ratification of the U.S. Constitution, p. 50.The drive for ratification became a fierce fight betweenFederalists and Anti-Federalists. Federalists lobbied for the strong national government created by theConstitution; Anti-Federalists favored greater state power.

What Should I Have LEARNED?Now that you have read this chapter, you should be able to:


Test Yourself: The Constitution 2.1 Trace the historical developments that led to

the colonists’ break with Great Britain and theemergence of the new American nation, p. 30. The purpose of the First Continental Congress in 1774 was toA. Devise a plan to secede from Great Britain.B. Protest the British taxes on tea.C. Bring the colonies together to keep abreast of the

developments with the British.D. Formally oppose the Coercive Acts.E. Adopt the Olive Branch Petition.

2.2 Identify the key components of the Articles of Confederation and the reasons why it failed,p. 38.

Why did the Articles of Confederation create a nationalsystem of government whose power was derived from thestates?A. The disagreements in the Continental Congress

necessitated a compromise between those who wanted astrong national government and those who supportedstrong state governments.

B. The Articles simply formalized the system of governmentproposed by the Declaration of Independence.

C. The Framers sought to create a system similar to otherdemocracies in the world.

D. It was a reaction to Great Britain’s unitary system ofgovernment.

E. The states wanted a system wherein they would beloosely dependent on a national government.2.3 Outline the issues and compromises that

were central to the writing of the U.S. Constitution, p. 40.

During the formation of the United States, smaller statessuch as New Jersey and Connecticut supported a model ofgovernment that included all of the following featuresEXCEPTA. a legislature with the power to select the executive.B. a one-house legislature with one vote for each

state.C. congressional powers to raise revenue from duties on

imports and from postal services.D. revision—not replacement—of the Articles of

Confederation.E. creation of a Supreme Court with members appointed

for life by executive officers.

2.4 Analyze the underlying principles of the U.S. Constitution, p. 44.

With which aspect of government does Article III of theU.S. Constitution deal?A. The supremacy of the ConstitutionB. The executive branch of governmentC. Proper procedures for adding states to the unionD. The legislative branch of governmentE. The judicial branch of government

2.5 Explain the conflicts that characterized thedrive for ratification of the U.S. Constitution, p. 50.

Which of the following was one of the views of the Anti-Federalists?A. The most elite groups of society are the most fit to govern.B. A strong government could strip powers away from the

states.C. Separation of powers would prevent any one group

from dominating the national government.D. There can be a happy combination between a strong

national government and state governments responsiveto local needs.

E. The U.S. Constitution, in its original form, providedsufficient protections of the citizens.

2.6 Distinguish between the methods for proposingand ratifying amendments to the U.S. Constitution, p. 54.

In what ways has the U.S. Constitution NOT been amended?A. Ratification by legislatures in three-fourths of the statesB. Judicial interpretationC. Social and cultural changeD. Ratification by conventions called in one-fourth of

the statesE. Proposal by two-thirds vote in both houses of Congress

Essay Questions1. What were some of the weaknesses of the Articles of

Confederation, and how did the U.S. Constitutioncorrect those weaknesses?

2. Why was the Bill of Rights added to the U.S.Constitution?

3. How is power checked and balanced in the nationalgovernment?

4. In what way was ratification of the Twenty-FirstAmendment different from ratification of the others,and what accounts for this difference?

2.6 Distinguish between the methods for proposingand ratifying amendments to the U.S. Constitution, p. 54. The Framers did not want the government to be too swayedby the whims of the people.Therefore, they designed a

deliberate two-stage, formal amendment process thatrequired approval on the federal and state levels; this processhas rarely been used. However, informal amendments,prompted by judicial interpretation and by cultural and socialchange, have had a tremendous impact on the Constitution.

To Learn More on the Constitution 61

Key TermsAnti-Federalists, p. 51Articles of Confederation, p. 38Bill of Rights, p. 54checks and balances, p. 44Committees of Correspondence,

p. 33confederation, p. 38constitution, p. 41Declaration of Independence, p. 36

enumerated powers, p. 47federal system, p. 44The Federalist Papers, p. 52Federalists, p. 51First Continental Congress, p. 34full faith and credit clause, p. 50Great Compromise, p. 42implied powers, p. 48mercantilism, p. 31

necessary and proper clause, p. 48New Jersey Plan, p. 42Second Continental Congress, p. 35separation of powers, p. 44Shays’s Rebellion, p. 40Stamp Act Congress, p. 33supremacy clause, p. 50Three-Fifths Compromise, p. 43Virginia Plan, p. 41

To Learn More on the ConstitutionIn the LibraryAckerman, Bruce. The Failure of the Founding Fathers: Jefferson,

Marshall, and the Rise of Presidential Democracy, new ed.Cambridge, MA: Belknap Press, 2007.

Beard, Charles A. An Economic Interpretation of the Constitution of

the United States, reissue ed. Mineola, NY: Dover, 2004.Beeman, Richard. Plain, Honest Men: The Making of the American

Constitution. New York: Random House, 2009.Bowen, Catherine Drinker. Miracle at Philadelphia. Boston: Little,

Brown, 1986.Breyer, Stephen. Active Liberty: Interpreting Our Democratic

Constitution. New York: Vintage, 2007.Brinkley, Alan, Nelson W. Polsby, and Kathleen M. Sullivan. New

Federalist Papers: Essays in Defense of the Constitution. New York:Norton, 1997.

Dahl, Robert A. How Democratic is the American Constitution? 2nd ed.New Haven, CT: Yale University Press, 2004.

Hamilton, Alexander, James Madison, and John Jay. The Federalist

Papers. New York: Bantam Books, 1989 (first published in 1788).Ketcham, Ralph, ed. The Anti-Federalist Papers and the Constitutional

Convention Debates. New York: Signet Classics, 2003.Main, Jackson Turner. The Anti-Federalists: Critics of the Constitution,

1781–1788. Chapel Hill: University of North Carolina Press, 2004.Sabato, Larry J. A More Perfect Constitution. New York: Walker, 2008.Stewart, David O. The Summer of 1787: The Men Who Invented the

Constitution. New York: Simon and Schuster, 2007.

Storing, Herbert J. What the Anti-Federalists Were For. Chicago:University of Chicago Press, 1981.

Tushnet, Mark. Taking the Constitution Away from the Courts.

Princeton, NJ: Princeton University Press, 2002.Wood, Gordon S. The Creation of the American Republic,

1776–1787, reissue ed. Chapel Hill: University of NorthCarolina Press, 1998.

On the WebTo learn more about the founding of the United States, the Articles

of Confederation, and the writing and ratification of theConstitution, go to the educational resources page of the Houseof Representatives at www.house.gov/house/Educate.shtml.

To learn more about the Declaration of Independence, theConstitution, the Bill of Rights, and the Framers, go to theNational Archives site at www.archives.gov/exhibits/charters/

charters.html.

To learn more about the eighteenth-century documents related tothe national founding and the Revolutionary War, go to theAvalon Project at Yale Law School at www.yale.edu/lawweb/

avalon/18th.htm.

To learn more about The Federalist Papers, go to the Library ofCongress at thomas.loc.gov.

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