The History Cat Classroom
The Constitutional Convention
Turn on the evening news, and it won’t be hard to find people engaged in a heated debate about the “dangers of big government.” Is its size too big? Are there too many government programs? Is Uncle Sam secretly putting radio tracking devices in your breakfast cereal? The “Big Government” debate is as American as double bacon cheeseburgers and obesity.
When the fifty-five delegates showed up in Philadelphia in the summer of 1787 to amend the Articles of Confederation, nobody was sure what was going to come out of it. The Great Convention was a who’s who of 18th Century American society. Gathered in Philadelphia were the wealthiest, most famous, and most powerful men in the nation. Historian James MacGregor called the convention a meeting of the “well-bred, well-fed, well-read, and the well-wed.”
Ironically, the fathers of American democracy spent a lot of time wrangling over what role the people would play in this new government. Men like Roger Sherman and Elbridge Gerry had little faith in the people when it came to participating in politics. Sherman believed that ordinary people were easily misled. Men like Gerry saw the average Joe as too ignorant to participate in government and would better off being represented by their “betters.” Of course, in his defense, most people in those days didn’t have more than a fifth-grade education. This fear of the ignorant masses is why we have the Electoral College. Others like George Mason and Benjamin Franklin were quick to point out the hypocrisy of the situation. Didn’t we just fight a war for democracy and equality? How could the new government turn around and lock the people out of government after the people had fought to overthrow tyranny?
With so many these conflicting opinions, it is nothing short of a miracle that a new government was created at all. For the first two months, hardly anything was accomplished. Things were becoming so desperate that Benjamin Franklin proposed that the group adopt a measure to pray for a solution, but only two people supported him on the motion. The delegates were worried what it might look like if word got out that that they had to appeal to God to step in to help solve the deadlock.
The Battle of the Plans: New Jersey v. Virginia
The critical issue that kept the delegates divided was the over how power would be shared under the new government. James Madison and Alexander Hamilton, being the overachievers of the group, had come to the Philadelphia already having written their own draft of the of the Constitution. Under Madison’s plan, which would become known as the Virginia Plan, the national government would be divided into three branches: Legislative, Executive, and Judicial. The Legislative Branch, i.e., Congress, would be bicameral (that is it would have two houses); with the lower house elected by the people and an upper house whose members chosen by the state legislatures. Representation in both houses would be based on population. Madison and Hamilton, being federalists who believed in a strong central government, wanted Congress to have the power to choose the president and members of the Supreme Court. Had this system been adopted America would have had a Parliamentary system almost identical to Britain’s… minus the king.
The Virginia Plan was extremely unpopular with the small states because in a world where size matters, the small states would always be outvoted. Small states like New Jersey and Delaware countered with the New Jersey Plan. Basically, their version was the Articles of Confederation with a facelift. Like the current government, there would be a unicameral (one-house) legislature where each state would have an equal vote in Congress. The New Jersey Plan supported the idea of a three-branch system of government where Congress selected the President and the President chose members of the Supreme Court. Both plans agreed that Congress should be given the power to tax and regulate trade between the states. The Constitution that we know and love was inching closer to becoming a reality.
The Great Compromise
The Legislative Branch
After much wrangling, speechifying, and debating, the delegates reached a compromise that established a legislative branch that had a little of everything mixed in. Sorta like a fruitcake, but without that bloated feeling. The new Congress would have a bi-cameral legislature with the lower house (House of Representatives) elected based on the size of a state’s population and elected directly by the people. The upper house (The Senate) would elect two members (Ben Franklin’s idea) from each state and would be chosen by the state legislatures. This last rule would remain in effect until 1913 when the Seventeenth Amendment allowed people to vote for their Senators directly.
The Executive Branch
The next big issue was what powers the Executive Branch would have under the new government? Madison was in favor of the POTUS being a life-long position similar to a king– and would be chosen by Congress. Most wanted to have a president elected for a single term of seven years. What they settled on is what we have today. The President elected to a four-year term with the possibility of re-election. There were no term limits until 1951, but every president followed George Washington’s example and served for only two terms. Franklin D. Roosevelt who served from 1933-1945 broke this tradition by being elected to an unprecedented four terms in office; which led to the twenty-first amendment which placed a two-term cap on the executive branch.
The Judicial Branch
Under the A.O.C legal disputes were left up to the state’s to decide. No national court system existed. What happened when an argument broke out between the states? Well, that turned out to be the biggest failure of the government laid out by the A.O.C. Congress was supposed to play referee between the squabbling states but didn’t have the power to enforce its decisions. Under the new Constitution, a federal court system was set up with both a national (federal) court system and a state court system sharing power. Criminal and civil cases would be tried based on whose laws were broken. For example, a traffic ticket in Maryland is dealt with by the Maryland court. A case involving a guy that robs a store in Kentucky and then crosses the state line and does the same thing in Ohio would be considered a national crime and be handled by the Federal Courts. Article III of the Constitution set up a tiered pyramid of justice with lower district courts being able to hear cases first, but with the chance of an appeal to a higher court. At the top of this pyramid is the Supreme Court (one for each state and one for the nation) who makes a final decision on all cases if the lower courts couldn't resolve the problem.
Federalist v. Anti-Federalist
On September 17th, 1789 the delegates at the Philadelphia Convention said goodbye to 149 days of intense debate and headed home. Now the hard part began–getting nine of the thirteen states to actually approve the document. Once word got out that the delegates were not just revising the Articles of Confederation Americans quickly divided into two camps. The Federalists felt that the Constitution, even with its flaws, couldn’t get any better. The Anti-Federalists, as their name implies, felt that Federalists had gone too far and had completely exceeded their authority. Talk of the Constitution dominated the newspaper headlines, church sermons, and state house debates for the next ten months.
The Anti-Federalists on average were poor, uneducated, farmers who lived in the western parts of their states. Farmers who didn’t take a prominent role in government, to begin with, and were against the government getting their business. Many complained that the Federalists were creating an American monarchy. The Anti-Federalists had some influential voices, men like Patrick Henry (give me liberty or give me death), Sam Adams, and Thomas Paine (the guy who wrote ‘Common Sense.')
In December, Delaware became the first state to approve (unanimously, no less) the Constitution- earning it the right to stamp its license plates with the motto “The First State”. On June 17, 1788, New Hampshire became the ninth state to vote in favor of making the Constitution the law of the land. Technically, Congress had all the support it needed to move forward on creating a new government. But the framers knew that the Constitution and the United States couldn’t stay together without its two powerhouses– New York and Virginia who were the two biggest holdouts. In these two states, the political fur flew, and opinion was divided 50/50.
Again, talk turned to adding in a Bill of Rights to calm Anti-Federalist fears of an all-powerful government. Nearly every state had as a part of its own Constitutions protections against arbitrary arrests and crackdowns against the press and wanted promises that the national government would do the same. Under the colonial rule, the British government could, and did, squash dissent by jailing people who spoke out against the government. Benjamin Franklin’s brother had been jailed for four months for printing material that was less than flattering about the Virginia Assembly. The biggest trial of the century involved a New York journalist named John Peter Zenger who was arrested for seditious libel (writing lies) after he criticized the governor in one of his articles. Alexander Hamilton was a young lawyer was defending Zenger. Zenger won his case for free speech, which no doubt influenced the writers of the Constitution
The Anti-Federalists immediately went on the attack. In a series of political pamphlets with titles like “Letters from the Federal Farmer”, “The Deliberator”, the Anti-Federalists attacked the Constitution as being undemocratic by taking power away from the states and the people. Our personal favorite goes to– “An Additional Number of Letters From the Federal Farmer to the Republican Leading to a Fair Examination of the System of Government Proposed by the Late Convention” for its ridiculously long title. The Anti-Federalists claimed that the new government was run by a bunch of wealthy elitists who would ignore the little guy.
The Anti-Federalists may have had a point. After all Federalists like James Madison, George Washington, Benjamin Franklin, Alexander Hamilton, John Jay who were all incredibly wealthy and influential individuals. The Federalists had a huge advantage because they either owned or were friends with people who owned the printing presses that printed articles in support of the Federalists. Hamilton, Madison, and Jay teamed up to write ‘The Federalist Papers’, 85 essays arguing why the Constitution needed to be adopted. Thomas Jefferson called them “the best commentary on the principles of government which ever was written”. Pretty high praise coming from an Anti-Federalist. Both sides wrote their works under Roman pseudonyms like Publius and Brutus so that their writing could stand on its own, without being attached to the way people felt about its author.
You Gotta Fight For Your (Bill of) Rights
James Madison and the Federalists believed that a Bill of Rights was dangerous because by spelling out which rights the government couldn’t take away it might imply that the government could take away everything else Thomas Jefferson, still in France, kept up with events back home through letters with James Madison. Jefferson was able to convince Madison to change his tune and support adding a Bill of Rights. Madison was no dummy; already the Anti-Federalists were calling for a second convention to rewrite the original. If that happened, Madison knew that the Constitution that we know today would have been dead in the water. Madison quickly began pushing his fellow Federalists to add in a Bill of Rights to save the Constitution. Drawing on several documents like the English Bill of Rights, and the Virginia Declaration of Rights, Madison came up with a list of 20 amendments to protect the rights of the people from the dangers of an abusive government. Madison's original 20 amendments were whittled down to 17 by the House, then it got knocked down to 12 by the Senate. So, what about the two rejects? The first banned Congress from giving itself a pay raise without the consent of the people. This amendment was killed in 1792 but would be added two hundred years later as the 27th Amendment. The other “lost amendment” spelled out that congressional districts should not exceed 50,000 people. Which it’s probably a good thing that it didn’t pass otherwise the United States, with 320 million people, would have 6400 representatives in Congress. We can barely manage to get anything done with the 535 that we currently elect, just imagine the mess if we had that many politicians running the ship! The Bill of Rights has become a cornerstone of American democracy and in the minds of most Americans “freedom of speech” and “a right to bear arms” are the first thing that comes to mind when we think of our Constitution. Madison is probably rolling over in his grave.
"Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes."
Benjamin Franklin, letter to Jean-Baptiste Leroy,
November 13, 1789