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Literary Analysis Essay Of The U S Constitution Wikipedia

Article Five of the United States Constitution describes the process whereby the Constitution, the nation's frame of government, may be altered. Altering the Constitution consists of proposing an amendment or amendments and subsequent ratification. Amendments may be proposed either by the Congress with a two-thirds vote in both the House of Representatives and the Senate or by a convention of states called for by two-thirds of the state legislatures.[1] To become part of the Constitution, an amendment must be ratified by either—as determined by Congress—the legislatures of three-quarters of the states or state ratifying conventions in three-quarters of the states.[2] The vote of each state (to either ratify or reject a proposed amendment) carries equal weight, regardless of a state's population or length of time in the Union.

Additionally, Article V temporarily shielded certain clauses in Article I from being amended. The first clause in Section 9, which prevented Congress from passing any law that would restrict the importation of slaves prior to 1808, and the fourth clause in that same section, a declaration that direct taxes must be apportioned according to state populations, were explicitly shielded from Constitutional amendment prior to 1808. It also shields the first clause of Article I, Section 3, which provides for equal representation of the states in the Senate, from being amended, though not absolutely.


The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.[3]

Procedures for amending the Constitution[edit]

Thirty-three amendments to the United States Constitution have been approved by the Congress and sent to the states for ratification. Twenty-seven of these amendments have been ratified and are now part of the Constitution. The first ten amendments were adopted and ratified simultaneously and are known collectively as the Bill of Rights. Six amendments adopted by Congress and sent to the states have not been ratified by the required number of states and are not part of the Constitution. Four of these amendments are still technically open and pending, one is closed and has failed by its own terms, and one is closed and has failed by the terms of the resolution proposing it. All totaled, approximately 11,539 measures to amend the Constitution have been proposed in Congress since 1789 (through December 16, 2014).[4]

Proposing amendments[edit]

Article V provides two methods for amending the nation's frame of government. The first method authorizes Congress, "whenever two-thirds of both houses shall deem it necessary" (a two-thirds of those members present—assuming that a quorum exists at the time that the vote is cast—and not necessarily a two-thirds vote of the entire membership elected and serving in the two houses of Congress), to propose Constitutional amendments. The second method requires Congress, "on the application of the legislatures of two-thirds of the several states" (presently 34), to "call a convention for proposing amendments".[5]

When the 1st Congress considered a series of constitutional amendments, it was suggested that the two houses first adopt a resolution indicating that they deemed amendments necessary. This procedure was not used. Instead, both the House and the Senate proceeded directly to consideration of a joint resolution, thereby implying that both bodies deemed amendments to be necessary. Also, when initially proposed by James Madison, the amendments were designed to be interwoven into the relevant sections of the original document.[6] Instead, they were approved by Congress and sent to the states for ratification as supplemental additions (codicils) appended to it. Both these precedents have been followed ever since.[7]

Regarding the amendment process crafted during the 1787 Constitutional Convention, Madison, in The Federalist No. 43, wrote:

It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the General and the State Governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.[6][8]

Each time the amendment process has been initiated since 1789, the first method has been used. All 33 amendments submitted to the states for ratification originated in the Congress. The second method, the convention option, which Alexander Hamilton (writing in The Federalist No. 85) believed would serve as a barrier "against the encroachments of the national authority",[8] has yet to be successfully invoked, although not for lack of activity in the states.

Three times in the 20th century, concerted efforts were undertaken by proponents of particular amendments to secure the number of applications necessary to summon an Article V Convention. These included conventions to consider amendments to (1) provide for popular election of U.S. Senators; (2) permit the states to include factors other than equality of population in drawing state legislative district boundaries; and (3) to propose an amendment requiring the U.S. budget to be balanced under most circumstances. The campaign for a popularly elected Senate is frequently credited with "prodding" the Senate to join the House of Representatives in proposing what became the Seventeenth Amendment to the states in 1912, while the latter two campaigns came very close to meeting the two-thirds threshold in the 1960s and 1980s, respectively.[5][9]

Further information: Convention to propose amendments to the United States Constitution and Second Constitutional Convention of the United States

Once approved by Congress, the joint resolution proposing a constitutional amendment does not require Presidential approval before it goes out to the states. While Article I Section 7 provides that all federal legislation must, before becoming Law, be presented to the President for his or her signature or veto, Article V provides no such requirement for constitutional amendments approved by Congress, or by a federal convention. Thus the president has no official function in the process.[a][b] In Hollingsworth v. Virginia (1798), the Supreme Court affirmed that it is not necessary to place constitutional amendments before the President for approval or veto.[7]

Ratification of amendments[edit]

After being officially proposed, either by Congress or a national convention of the states, a constitutional amendment must then be ratified by three-fourths of the states. Congress is authorized to choose whether a proposed amendment is sent to the state legislatures or to state ratifying conventions for ratification. Amendments ratified by the states under either procedure are indistinguishable and have equal force as part of the Constitution. Of the 33 amendments submitted to the states for ratification, the state convention method has been used for only one, the Twenty-first Amendment, which became part of the Constitution in 1933.[5] This was also one of only four times that Congress has placed the mode of ratification in the body of an amendment rather than in accompanying legislation; the others being the Eighteenth, Twentieth, and Twenty-second Amendments.[12] In United States v. Sprague (1931), the Supreme Court affirmed the authority of Congress to decide how each individual constitutional amendment is ratified, in accordance with the options provided in Article V and the equal validity of amendments properly ratified in either fashion. The Court had earlier, in Hawke v. Smith (1920), ruled the ratification of the proposed Nineteenth Amendment (which Congress had sent to the state legislatures for ratification) by the Legislature of Ohio could not be referred to the electors (voters) of the state, and that the Ohio Constitution, in requiring such a referendum, was inconsistent with the U.S. Constitution.

An amendment becomes an operative part of the Constitution when it is ratified by the necessary number of states, rather than on the later date when its ratification is certified.[13] No further action by Congress or anyone is required. On three occasions, Congress has, after being informed that an amendment has reached the ratification threshold, adopted a resolution declaring the process successfully completed.[c][14] Such actions, while perhaps important for political reasons, are, constitutionally speaking, unnecessary.

Presently, the Archivist of the United States is charged with responsibility for administering the ratification process under the provisions of 1 U.S. Code§ 106b. The Archivist officially notifies the states, by a registered letter to each state's Governor, that an amendment has been proposed.[15] Each Governor then formally submits the amendment to their state's legislature (or ratifying convention). When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state's action. Upon receiving the necessary number of state ratifications, it is the duty of the Archivist to issue a certificate proclaiming a particular amendment duly ratified and part of the Constitution.[d] The amendment and its certificate of ratification are then published in the Federal Register and United States Statutes at Large. This serves as official notice to Congress and to the nation that the ratification process has been successfully completed.[1]

Ratification deadline and extension[edit]

The Constitution is silent on the issue of whether or not Congress may limit the length of time that the states have to ratify constitutional amendments sent for their consideration. It is also silent on the issue of whether or not Congress, once it has sent an amendment that includes a ratification deadline to the states for their consideration, can extend that deadline.


The practice of limiting the time available to the states to ratify proposed amendments began in 1917 with the Eighteenth Amendment. All amendments proposed since then, with the exception of the Nineteenth Amendment and the (still pending) Child Labor Amendment, have included a deadline, either in the body of the proposed amendment, or in the joint resolution transmitting it to the states.[e] The ratification deadline "clock" begins running on the day final action is completed in Congress. An amendment may be ratified at any time after final congressional action, even if the states have not yet been officially notified.[15]

In Dillon v. Gloss (1921), the Supreme Court upheld Congress's power to prescribe time limitations for state ratifications and intimated that clearly out of date proposals were no longer open for ratification. Granting that it found nothing express in Article V relating to time constraints, the Court yet allowed that it found intimated in the amending process a "strongly suggest[ive]" argument that proposed amendments are not open to ratification for all time or by States acting at widely separate times.[17] The court subsequently, in Coleman v. Miller (1939), modified its opinion considerably. In that case, related to the proposed Child Labor Amendment, it held that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment. Based upon this precedent, the Archivist of the United States proclaimed the Twenty-seventh Amendment as having been ratified when it surpassed the "three fourths of the several states" plateau for becoming a part of the Constitution. Declared ratified on May 7, 1992, it had been submitted to the states for ratification on September 25, 1789, an unprecedented time period of 202 years, 7 months and 12 days.[15]


Whether once it has prescribed a ratification period Congress may extend the period without necessitating action by already-ratified States embroiled Congress, the states, and the courts in argument with respect to the proposed Equal Rights Amendment (Sent to the states on March 22, 1972 with a seven-year ratification time limit attached). In 1978 Congress, by simple majority vote in both houses, extended the original deadline by 3 years, 3 months and 8 days (through June 30, 1982).

The amendment's proponents argued that the fixing of a time limit and the extending of it were powers committed exclusively to Congress under the political question doctrine and that in any event Congress had power to extend. It was argued that inasmuch as the fixing of a reasonable time was within Congress' power and that Congress could fix the time either in advance or at some later point, based upon its evaluation of the social and other bases of the necessities of the amendment, Congress did not do violence to the Constitution when, once having fixed the time, it subsequently extended the time. Proponents recognized that if the time limit was fixed in the text of the amendment Congress could not alter it because the time limit as well as the substantive provisions of the proposal had been subject to ratification by a number of States, making it unalterable by Congress except through the amending process again. Opponents argued that Congress, having by a two-thirds vote sent the amendment and its authorizing resolution to the states, had put the matter beyond changing by passage of a simple resolution, that states had either acted upon the entire package or at least that they had or could have acted affirmatively upon the promise of Congress that if the amendment had not been ratified within the prescribed period it would expire and their assent would not be compelled for longer than they had intended.[17]

In 1981, the United States District Court for the District of Idaho, however, found that Congress did not have the authority to extend the deadline, even when only contained within the proposing joint resolution's resolving clause.[18] The Supreme Court had decided to take up the case, bypassing the Court of Appeals,[19] but before they could hear the case, the extended period granted by Congress had been exhausted without the necessary number of states, thus rendering the case moot.[20]

Exclusive means for amending the Constitution[edit]

According to constitutional theorist and scholar Lawrence G. Sager, some commentators have seriously questioned whether Article V is the exclusive means of amending the Constitution, or whether there are routes to amendment, including some routes in which the Constitution could be unconsciously or unwittingly amended in a period of sustained political activity on the part of a mobilized national constituency.[21] For example, Akhil Amar argues that the Constitution may be constitutionally amended outside of Article V. He rejects the notion that Article V excludes other modes of constitutional change, arguing instead that the procedure provided for in Article V is simply the exclusive method the government may use to amend the Constitution. He asserts that Article V nowhere prevents the People themselves, acting apart from ordinary Government, from exercising their legal right to alter or abolish Government via the proper legal procedures.[22]Bruce Ackerman argues that the Constitution can be amended by something he calls a "structural amendment" whereby the people alter their Constitutional order via succeeding elections.[23][page needed] Similarly, Sanford Levinson believes that Constitutional amendments have been made outside of Article V and as such it is not exclusive.[24][page needed]

Other scholars disagree with Amar, Ackerman, and Levinson. Some argue that the Constitution itself provides no mechanism for the American people to adopt constitutional amendments independently of Article V.[25] Darren Patrick Guerra has argued that Article V is a vital part of the American Constitutional tradition and he defends Article V against modern critiques that Article V is either too difficult, too undemocratic, or too formal. Instead he argues that Article V provides a clear and stable way of amending the document that is explicit, authentic, and the exclusive means of amendment; it promotes wisdom and justice through enhancing deliberation and prudence; and its process complements federalism and separation of powers that are key features of the Constitution. He argues that Article V remains the most clear and powerful way to register the sovereign desires of the American public with regard to alterations of their fundamental law. In the end, Article V is an essential bulwark to maintaining a written Constitution that secures the rights of the people against both elites and themselves.[26][page needed]

In his farewell address, President George Washington said:[27]

If in the opinion of the People the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.

This statement by Washington has become controversial, and scholars[which?] disagree about whether it still describes the proper constitutional order in the United States.[28] Scholars[which?] who dismiss Washington's position often argue that the Constitution itself was adopted without following the procedures in the Articles of Confederation,[29] while Constitutional attorneyMichael Farris disagrees, saying the Convention was a product of the States' residual power, and the amendment in adoption process was legal, having received the unanimous assent of the States' legislatures.[30]

See also[edit]


  1. ^On March 2, 1861 the 36th Congress gave final approval to proposed constitutional amendment designed to shield "domestic institutions" (which at the time included slavery) from the constitutional amendment process and from abolition or interference by Congress. The following day, on his last full day in office, President Buchanan, took the unprecedented step of signing it. Submitted to the state legislatures for ratification without a time limit for ratification attached, the proposal, commonly known as the Corwin Amendment, is still technically pending before the states.[10]
  2. ^On January 31, 1865, the 38th Congress gave final approval to what would become the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as punishment for a crime. The following day, the amendment was presented to the President Lincoln pursuant to the constitution’s Presentment Clause, and signed. On February 7, Congress passed a resolution affirming that the Presidential signature was unnecessary.[11]
  3. ^1868 regarding the Fourteenth Amendment, 1870 regarding the Fifteenth Amendment, and 1992 regarding the Twenty-seventh Amendment
  4. ^In recent history, the signing of the certificate of ratification has become a ceremonial function attended by various dignitaries. President Johnson signed the certifications for the Twenty-fourth Amendment and Twenty-fifth Amendment as a witness. When the Administrator of General Services, Robert Kunzig, certified the adoption of the Twenty-sixth Amendment on July 5, 1971, President Nixon along with Julianne Jones, Joseph W. Loyd Jr., and Paul Larimer of the "Young Americans in Concert" signed as witnesses. On May 18, 1992, the Archivist of the United States, Don W. Wilson, certified that the Twenty-seventh Amendment had been ratified, and the Director of the Federal Register, Martha Girard, signed the certification as a witness.[1][16]
  5. ^Congress incorporated the ratification deadline for the Eighteenth, Twentieth, Twenty-first, and Twenty-second Amendments into the body of the amendment, so these amendments' deadlines are now part of the Constitution. The failed District of Columbia Voting Rights Amendment also contained a ratification deadline clause. Congress incorporated the ratification deadline for the Twenty-third, Twenty-fourth, Twenty-fifth and Twenty-sixth Amendments into the joint resolutions transmitting them to the state legislatures in order to avoid including extraneous language in the Constitution. This practice was also followed for the failed Equal Rights Amendment.


  1. ^ abc"The Constitutional Amendment Process". The U.S. National Archives and Records Administration. Retrieved November 17, 2015. 
  2. ^Wines, Michael (August 22, 2016). "Inside the Conservative Push for States to Amend the Constitution". NYT. Retrieved August 24, 2016. 
  3. ^"The Constitution of the United States: Article V". The U.S. National Archives and Records Administration. Retrieved July 27, 2014. 
  4. ^"Measures Proposed to Amend the Constitution". Statistics & Lists. United States Senate. 
  5. ^ abcNeale, Thomas H. (April 11, 2014). "The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress"(PDF). Congressional Research Service. pp. 1–2. Retrieved November 17, 2015. 
  6. ^ abEngland, Trent & Spalding, Matthew. "Essays on Article V: Amendments". The Heritage Foundation. Retrieved July 31, 2014. 
  7. ^ ab"The Constitution of the United States of America: Analysis and Interpretation, Centennial Edition, Interim Edition: Analysis of Cases Decided by the Supreme Court of the United States to June 26, 2013"(PDF). Washington, DC: U.S. Government Printing Office. 2013. pp. 987–1001. Retrieved April 13, 2014. 
  8. ^ abSen. David Long "Amending the U.S. Constitution by State-Led Convention"
  9. ^Rossum, Ralph A. (2001). Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy. Lanham, Maryland: Lexington Books. p. 207. ISBN 0-7391-0285-0. Retrieved October 23, 2015. 
  10. ^Tsesis, Alexander (2004). The Thirteenth Amendment and American Freedom: A Legal History. New York: New York University Press. p. 2. ISBN 0-8147-8276-0. 
  11. ^Thorpe, Francis Newton (1901). "The Constitutional History of the United States, vol. 3: 1861–1895". Chicago: Callaghan & Company. p. 154. 
  12. ^Vile, John R. Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–2002 (Second ed.). Santa Barbara, California: ABC-CLIO, Inc. p. 373. ISBN 1851094334. Retrieved November 22, 2015. 
  13. ^Cornell University Law School. "Dillon v. Gloss". law.cornell.edu. 
  14. ^Neale, Thomas H. "The Proposed Equal Rights Amendment: Contemporary Ratification Issues"(PDF). Congressional Research Service. Retrieved July 27, 2014. 
  15. ^ abcHuckabee, David C. (September 30, 1997). "Ratification of Amendments to the U.S. Constitution"(PDF). Congressional Research Service reports. Washington D.C.: Congressional Research Service, The Library of Congress. 
  16. ^http://www.presidency.ucsb.edu/ws/index.php?pid=3068&st=&st1= Richard Nixon: "Remarks at a Ceremony Marking the Certification of the 26th Amendment to the Constitution," July 5, 1971. Online by Gerhard Peters and John T. Woolley, The American Presidency Project.
  17. ^ ab"Authentication and Proclamation: Proposing a Constitutional Amendment". Justia.com. 
  18. ^Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981).
  19. ^Certiorari before judgment granted, NOW v. Idaho, 455 U.S. 918 (1982).
  20. ^Judgments of the District Court of Idaho vacated; cases remanded with instructions to dismiss as moot. NOW v. Idaho, 459 U.S. 809 (1982).
  21. ^Sager, Lawrence (2006). Justice in Plainclothes: A Theory of American Constitutional Practice. Yale University Press. p. 82. 
  22. ^Bowman, Scott J. (2004). "Wild Political Dreaming: Constitutional Reformation of the United States Senate". Fordham Law Review. 72 (4): 1026–27. Retrieved August 28, 2016. 
  23. ^Ackerman, Bruce A. (1993). We the People, Volume 1: Foundations. Cambridge, Massachusetts: Harvard University Press. ISBN 9780674948419 – via Google Books. 
  24. ^Levinson, Sanford (1995). Responding to Imperfection: The Theory and Practice of Constitutional Amendment. Princeton, New Jersey: Princeton University Press. ISBN 1400821630 – via Google Books. 
  25. ^Manheim, Karl and Howard, Edward. A Structural Theory of the Initiative Power in California, Loyola Los Angeles Law Review, p. 1167 (1998).
  26. ^Guerra, Darren Patrick (2013). Perfecting the Constitution: The Case for the Article V Amendment Process. Lanham, Maryland: Lexington Books. ISBN 9780739183861 – via Google Books. 
  27. ^Washington, George. "Farewell Address" (1796).
  28. ^Strauss, David. "The Irrelevance of Constitutional Amendments," 114 Harvard Law Review 1457 (2001).
  29. ^Fritz, Christian. "Fallacies of American Constitutionalism", Rutgers Law Journal, p. 1343 (2004).
  30. ^Farris, Michael. "Can we Trust the Constitution? Answering the "Runaway Convention" Myth". Convention of States Project. Retrieved June 3, 2016. 

External links[edit]

The U.S. constitutional amendment process
Tennessee certificate of ratification of the nineteenth Amendment; with this ratification, the amendment became valid as a part of the Constitution

The United States Constitution was written in 1787 during the Philadelphia Convention. The old Congress set the rules the new government followed in terms of writing and ratifying the new constitution. After ratification in eleven states, in 1789 its elected officers of government assembled in New York City, replacing the Articles of Confederation government. The original Constitution has been amended twenty-seven times. The meaning of the Constitution is interpreted and extended by judicial review in the federal courts. The original parchment copies are on display at the National Archives Building.

Two alternative plans were developed in Convention. The nationalist majority, soon to be called "Federalists," put forth the Virginia Plan, a consolidated government based on proportional representation among the states by population. The "old patriots," later called "Anti-Federalists," advocated the New Jersey Plan, a purely federal proposal, based on providing each state with equal representation. The Connecticut Compromise allowed for both plans to work together. Other controversies developed regarding slavery and a Bill of Rights in the original document.

The drafted Constitution was submitted to the Confederation Congress. It in turn forwarded the Constitution as drafted to the states for ratification by the Constitutional method proposed. The Federalist Papers provided background and justification for the Constitution. Some states agreed to ratify the Constitution only if the amendments that were to become the Bill of Rights would be taken up immediately by the new government, and they were duly proposed in the first session of the First Congress.

Once the Confederation Congress certified that eleven states had ratified the Constitution, elections were held, the new government began on March 4, 1789, and the Articles Congress dissolved itself. Later Amendments address individual liberties and freedoms, federal relationships, election procedures, terms of office, expanding the electorate, ending slavery, financing government, consumption of alcohol and Congressional pay. Criticism over the life of the Constitution has centered on expanding democracy and states rights.

Declaration of Independence[edit]

Main article: United States Declaration of Independence

On June 4, 1776, a resolution was introduced in the Second Continental Congress declaring the union with Great Britain to be dissolved, proposing the formation of foreign alliances, and suggesting the drafting of a plan of confederation to be submitted to the respective states. Independence was declared on July 4, 1776; the preparation of a plan of confederation was postponed. Although the Declaration was a statement of principles, it did not create a government or even a framework for how politics would be carried out. It was the Articles of Confederation that provided the necessary structure to the new nation during and after the American Revolution. The Declaration, however, did set forth the ideas of natural rights and the social contract that would help form the foundation of constitutional government.

The era of the Declaration of Independence is sometimes called the "Continental Congress" period. John Adams famously estimated as many as one-third of those resident in the original thirteen colonies were patriots. Scholars such as Gordon Wood describe how Americans were caught up in the Revolutionary fervor and excitement of creating governments, societies, a new nation on the face of the earth by rational choice as Thomas Paine declared in Common Sense.

Republican government and personal liberty for "the people" were to overspread the New World continents and to last forever, a gift to posterity. These goals were influenced by Enlightenment philosophy. The adherents to this cause seized on English Whig political philosophy as described by historian Forrest McDonald as justification for most of their changes to received colonial charters and traditions. It was rooted in opposition to monarchy they saw as venal and corrupting to the "permanent interests of the people."

To these partisans, voting was the only permanent defense of the people. Elected terms for legislature were cut to one year, for Virginia's Governor, one year without re-election. Property requirements for suffrage for men were reduced to taxes on their tools in some states. Free blacks in New York could vote if they owned enough property. New Hampshire was thinking of abolishing all voting requirements for men but residency and religion. New Jersey let women vote. In some states, senators were now elected by the same voters as the larger electorate for the House, and even judges were elected to one-year terms.

These "radical Whigs" were called the people "out-of-doors." They distrusted not only royal authority, but any small, secretive group as being unrepublican. Crowds of men and women massed at the steps of rural Court Houses during market-militia-court days. Shays Rebellion is a famous example. Urban riots began by the out-of-doors rallies on the steps of an oppressive government official with speakers such as members of the Sons of Liberty holding forth in the "people's "committees" until some action was decided upon, including hanging his effigy outside a bedroom window, or looting and burning down the offending tyrant's home.

Revolutionary Congress[edit]

The government of the First and Second Continental Congress, the period from September 1774 to March 1, 1781 is referred to as the Revolutionary Congress. Beginning in 1777, the substantial powers assumed by Congress "made the league of states as cohesive and strong as any similar sort of republican confederation in history".[1] The process created the United States "by the people in collectivity, rather than by the individual states", because only four had state constitutions at the time of the Declaration of Independence founding the nation, and three of those were provisional. Prior to the Articles of Confederation, and the Articles Congress, the Supreme Court in Ware v. Hylton and again in Penhallow v. Doane's Administrators, perceived Congress as exercising powers derived from the people, expressly conferred through the medium of state conventions or legislatures, and, once exercised, "impliedly ratified by the acquiescence and obedience of the people".[2]

Articles of Confederation[edit]

Main article: Articles of Confederation

The Articles of Confederation was unanimously adopted in 1781. Over the previous four years, it had been used by Congress as a "working document" to administer the early United States government, win the Revolutionary War and secure the Treaty of Paris (1783) with Great Britain. Lasting successes prior to the Constitutional Convention included the Land Ordinance of 1785 whereby Congress promised settlers west of the Appalachian Mountains full citizenship and eventual statehood.[3] Some historians characterize this period from 1781 to 1789 as weakness, dissension, and turmoil.[4] Other scholars view the evidence as reflecting an underlying stability and prosperity.[5] But returning prosperity in some areas did not slow the growth of domestic and foreign problems. Nationalists saw the confederation's central government as not strong enough to establish a sound financial system, regulate trade, enforce treaties, or go to war when needed.[6]

The Congress was the sole organ of the national government, without a national court to interpret law nor an executive branch to enforce them. Governmental functions, including declarations of war and calls for an army, were supported in some degree for some time, by each state voluntarily, or not.[6] These newly independent states separated from Britain no longer received favored treatment at British ports. The British refused to negotiate a commercial treaty in 1785 because the individual American states would not be bound by it. Congress could not act directly upon the States nor upon individuals. It had no authority to regulate foreign or interstate commerce. Every act of government was left to the individual States. Each state levied taxes and tariffs on other states at will, which invited retaliation. Congress could vote itself mediator and judge in state disputes, but states did not have to accept its decisions.[6]

The weak central government could not back its policies with military strength, embarrassing it in foreign affairs. The British refused to withdraw their troops from the forts and trading posts in the new nation's Northwest Territory, as they had agreed to do in the Treaty of Paris of 1783. British officers on the northern boundaries and Spanish officers to the south supplied arms to Native American tribes, allowing them to attack American settlers. The Spanish refused to allow western American farmers to use their port of New Orleans to ship produce.[6]

Revenues were requisitioned by Congressional petition to each state. None paid what they were asked; sometimes some paid nothing. Congress appealed to the thirteen states for an amendment to the Articles to tax enough to pay the public debt as principal came due. Twelve states agreed, Rhode Island did not, so it failed.[7] The Articles required super majorities. Amendment proposals to states required ratification by all thirteen states, all important legislation needed 70% approval, at least nine states. Repeatedly, one or two states defeated legislative proposals of major importance.[6]

Without taxes the government could not pay its debt. Seven of the thirteen states printed large quantities of its own paper money, backed by gold, land, or nothing, so there was no fair exchange rate among them. State courts required state creditors to accept payments at face value with a fraction of real purchase power. The same legislation that these states used to wipe out the Revolutionary debt to patriots was used to pay off promised veteran pensions. The measures were popular because they helped both small farmers and plantation owners pay off their debts.[8]

The Massachusetts legislature was one of the five against paper money. It imposed a tightly limited currency and high taxes. Without paper money veterans without cash lost their farms for back taxes. This triggered Shays Rebellion to stop tax collectors and close the courts. Troops quickly suppressed the rebellion, but nationalists like George Washington warned, "There are combustibles in every state which a spark might set fire to." [9]

Steps to a convention[edit]

Mount Vernon Conference[edit]

Main article: Mount Vernon Conference

An important milestone in interstate cooperation outside the framework of the Articles of Confederation occurred in March 1785, when delegates representing Maryland and Virginia met in Virginia, to address navigational rights in the states's common waterways.[10][a] On March 28, 1785, the group drew up a thirteen-point proposal to govern the two states' rights on the Potomac River, Pocomoke River, and Chesapeake Bay.[11] Known as the Mount Vernon Compact (formally titled the "Compact of 1785"),[12] this agreement not only covered tidewater navigation but also extended to issues such as toll duties, commerce regulations, fishing rights, and debt collection.[13] Ratified by the legislatures of both states, the compact, which is still in force, helped set a precedent for later meetings between states for discussions into areas of mutual concern.[11][b]

The conference’s success encouraged James Madison to introduce a proposal in the Virginia General Assembly for further debate of interstate issues. With Maryland's agreement, on January 21, 1786, Virginia invited all the states to attend another interstate meeting later that year in Annapolis, Maryland, to discuss the trade barriers between the various states.[14]


The Articles Congress received a report on August 7, 1786 from a twelve-member "Grand Committee", appointed to develop and present "such amendments to the Confederation, and such resolutions as it may be necessary to recommend to the several states, for the purpose of obtaining from them such powers as will render the federal government adequate to" its declared purposes. Seven amendments to the Articles of Confederation were proposed. Under these reforms, Congress would gain "sole and exclusive" power to regulate trade. States could not favor foreigners over citizens. Tax bills would require 70% vote, public debt 85%, not 100%. Congress could charge states a late payment penalty fee. A state withholding troops would be charged for them, plus a penalty. If a state did not pay, Congress could collect directly from its cities and counties. A state payment on another's requisition would earn annual 6%. There would have been a national court of seven. No-shows at Congress would have been banned from any U.S. or state office.[15] These proposals were, however, sent back to committee without a vote and were not taken up again.[16]

Annapolis Convention[edit]

Main article: Annapolis Convention (1786)

The Annapolis Convention, formally titled "A Meeting of Commissioners to Remedy Defects of the Federal Government", convened at George Mann's Tavern[17] on September 11, 1786. Delegates from five states gathered to discuss ways to facilitate commerce between the states and establish standard rules and regulations. At the time, each state was largely independent from the others and the national government had no authority in these matters.[18]

Appointed delegates from four states either arrived too late to participate or otherwise decided not attend. Because so few states were present, delegates did not deem "it advisable to proceed on the business of their mission." However, they did adopt a report calling for another convention of the states to discuss possible improvements to the Articles of Confederation. They desired that Constitutional Convention take place in Philadelphia in the summer of 1787.[19]

Legislatures of seven states—Virginia, New Jersey, Pennsylvania, North Carolina, New Hampshire, Delaware, and Georgia—immediately approved and appointed their delegations. New York and others hesitated thinking that only the Continental Congress could propose amendments to the Articles.[citation needed] George Washington was unwilling to attend an irregular convention like failed Annapolis Convention.[citation needed] Congress then called the convention at Philadelphia. The "Federal Constitution" was to be changed to meet the requirements of good government and "the preservation of the Union". Congress would then approve what measures it allowed, then the state legislatures would unanimously confirm whatever changes of those were to take effect.

Constitutional Convention[edit]

See also: Constitutional Convention (United States)

Twelve state legislatures, Rhode Island being the only exception, sent delegates to convene at Philadelphia in May 1787.[20] While the resolution calling the Convention specified that its purpose was to propose amendments to the Articles, through discussion and debate it became clear by mid-June that the Convention would propose a Constitution with a fundamentally new design.[21]


The Congress of the Confederation endorsed a plan to revise the Articles of Confederation on February 21, 1787.[20] It called on each state legislature to send delegates to a convention "'for the sole and express purpose of revising the Articles of Confederation' in ways that, when approved by Congress and the states, would 'render the federal constitution adequate to the exigencies of government and the preservation of the Union.'"

To amend the Articles into a workable government, 74 delegates from the twelve states were named by their state legislatures; 55 showed up, and 39 eventually signed. On May 3, eleven days early, James Madison arrived to Philadelphia and met with James Wilson of the Pennsylvania delegation to plan strategy. Madison outlined his plan in letters that (1) State legislatures each send delegates, not the Articles Congress. (2) Convention reaches agreement with signatures from every state. (3) The Articles Congress approves forwarding it to the state legislatures. (4) The state legislatures independently call one-time conventions to ratify, selecting delegates by each state's various rules of suffrage. The Convention was to be "merely advisory" to the people voting in each state.[c]


George Washington arrived on time, Sunday, the day before the scheduled opening.[d] For the entire duration of the Convention, Washington was a guest at the home of Robert Morris, Congress' financier for the American Revolution and a Pennsylvania delegate. Morris entertained the delegates lavishly. William Jackson, in two years to be the president of the Society of the Cincinnati, had been Morris' agent in England for a time; and he won election as a non-delegate to be the convention secretary.

The convention was scheduled to open May 14, but only Pennsylvania and Virginia delegations were present. The Convention was postponed until a quorum of seven states gathered on Friday the 25th.[e] George Washington was elected the Convention president, and Chancellor (judge) George Wythe (Va) was chosen Chair of the Rules Committee. The rules of the Convention were published the following Monday.[f]

Nathaniel Gorham (Ma) was elected Chair of the "Committee of the Whole". These were the same delegates in the same room, but they could use informal rules for the interconnected provisions in the draft articles to be made, remade and reconnected as the order of business proceeded. The Convention officials and adopted procedures were in place before the arrival of nationalist opponents such as John Lansing (NY) and Luther Martin (MD).[g] By the end of May, the stage was set.

The Constitutional Convention voted to keep the debates secret so that the delegates could speak freely, negotiate, bargain, compromise and change. Yet the proposed Constitution as reported from the Convention was an "innovation", the most dismissive epithet a politician could use to condemn any new proposal. It promised a fundamental change from the old confederation into a new, consolidated yet federal government. The accepted secrecy of usual affairs conducted in regular order did not apply. It became a major issue in the very public debates leading up to the crowd-filled ratification conventions.[h]

Despite the public outcry against secrecy among its critics, the delegates continued in positions of public trust. State legislatures chose ten Convention delegates of their 33 total for the Articles Congress that September.


Every few days, new delegates arrived, happily noted in Madison's Journal. But as the Convention went on, individual delegate coming and going meant that a state's vote could change with the change of delegation composition. The volatility added to the inherent difficulties, making for an "ever-present danger that the Convention might dissolve and the entire project be abandoned."

Nationalist floor leaders from biggest states

Although twelve states sent delegations, there were never more than eleven represented in the floor debates, often fewer. State delegations absented themselves at votes different times of day. There was no minimum for a state delegation; one would do. Daily sessions would have thirty members present. Members came and went on public and personal business. The Articles Congress was meeting at the same time, so members would absent themselves to New York City on Congressional business for days and weeks at a time.

But the work before them was continuous, even if attendance was not. The Convention resolved itself into a "Committee of the Whole", and could remain so for days. It was informal, votes could be taken and retaken easily, positions could change without prejudice, and importantly, no formal quorum call was required. The nationalists were resolute. As Madison put it, the situation was too serious for despair. They used the same State House, later named Independence Hall, as the Declaration signers. The building setback from the street was still dignified, but the "shaky" steeple was gone. When they adjourned each day, they lived in nearby lodgings, as guests, roomers or renters. They ate supper with one another in town and taverns, "often enough in preparation for tomorrow's meeting."

Delegates reporting to the Convention presented their credentials to the Secretary, Major William Jackson of South Carolina. The state legislatures of the day used these occasions to say why they were sending representatives abroad. New York thus publicly enjoined its members to pursue all possible "alterations and provisions" for good government and "preservation of the Union". New Hampshire called for "timely measures to enlarge the powers of Congress". Virginia stressed the "necessity of extending the revision of the federal system to all its defects".

On the other hand, Delaware categorically forbade any alteration of the Articles one-state, equal vote, one-vote-only provision in the Articles Congress. The Convention would have a great deal of work to do to reconcile the many expectations in the chamber. At the same time, delegates wanted to finish their work by fall harvest and its commerce.

May 29, Edmund Randolph (VA) proposed the Virginia Plan that would serve as the unofficial agenda for the Convention. It was weighted toward the interests of the larger, more populous states. The intent was to meet the purposes set out in the Articles of Confederation, "common defense, security of liberty and general welfare". The Virginia Plan was national, authority flowed from the people. If the people will ratify them, changes for better republican government and national union should be proposed.

Much of the Virginia Plan was adopted.[i] All the powers in the Articles transfer to the new government. Congress has two houses, the 'house' apportioned by population. It can enact laws affecting more than one state and Congress can override a veto. The President can enforce the law. The Supreme Court and inferior courts rule on international, U.S. and state law. The Constitution is the supreme law and all state officers swear to uphold the Constitution. Every state is a republic, and new states can be admitted.[39] The Articles Congress continued until the new system started. Amendments are possible without Congress. The Convention recommendations went to Congress, from them to the states. State legislatures set the election rules for ratification conventions, and the people "expressly" chose representatives to consider and decide about the Constitution.[38]

June 15, William Patterson (NJ) proposed the Convention minority's New Jersey Plan. It was weighted toward the interests of the smaller, less populous states. The intent was to preserve the states from a plan to "destroy or annihilate" them. The New Jersey Plan was purely federal, authority flowed from the states. Gradual change should come from the states. If the Articles could not be amended, then advocates argued that should be the report from the Convention to the states.[40]

Although the New Jersey Plan only survived three days as an alternate proposal, substantial elements of it were adopted.[j] The articles were "revised, corrected and enlarged" for good government and preservation of the Union. The Senate is elected by the states, at first by the state legislatures. Congress passes acts for revenue collected directly in the states, and the rulings of state courts are reviewed by the Supreme Court.[42] State apportionment for taxes failed, but the 'house' is apportioned by the population count of free inhabitants and three-fifths of others originally. States can be added to the Union. Presidents appoint federal judges. Treaties entered into by Congress are the supreme law of the land. All state judiciaries are bound to enforce treaties, state laws notwithstanding. The President can raise an army to enforce treaties in any state. States treat a violation of law in another state as though it happened there.[42]

Current knowledge of drafting the Constitution comes primarily from the Journal left by James Madison, found chronologically incorporated in Max Farrand's "The Records of the Federal Convention of 1787", which included the Convention Journal and sources from other Federalists and Anti-Federalists.[43]

Scholars observe that it is unusual in world history for the minority in a revolution to have the influence that the "old patriot" Anti-Federalists had over the "nationalist" Federalists who had the support of the revolutionary army in the Society of the Cincinnati. Both factions were intent on forging a nation in which both could be full participants in the changes which were sure to come, since that was most likely to allow for their national union, guarantee liberty for their posterity, and promote their mutual long-term material prosperity.

Slavery in debate[edit]

Main article: Slavery in the United States

The contentious issue of slavery was too controversial to be resolved during the Convention. But it was at center stage in the Convention three times, June 7 regarding who would vote for Congress, June 11 in debate over how to proportion relative seating in the 'house', and August 22 relating to commerce and the future wealth of the nation.

Once the Convention looked at how to proportion the House representation, tempers among several delegates exploded over slavery. When the Convention progressed beyond the personal attacks, it adopted the existing "federal ratio" for taxing states by three-fifths of slaves held.

On August 6, the Committee of Detail reported its proposed revisions to the Randolph Plan. Again the question of slavery came up, and again the question was met with attacks of outrage. Over the next two weeks, delegates wove a web of mutual compromises relating to commerce and trade, east and west, slave-holding and free. The transfer of power to regulate slave trade from states to central government could happen in 20 years, but only then.[k] Later generations could try out their own answers. The delegates were trying to make a government that might last that long.

Migration of the free or "importation" of indentures and slaves could continue by states, defining slaves as persons, not property. Long-term power would change by population as counted every ten years. Apportionment in the House would not be by wealth, it would be by people, the free citizens and three-fifths the number of other persons meaning propertyless slaves and taxed Indian farming families.[l]

In 1806, President Thomas Jefferson sent a message to the 9th Congress on their constitutional opportunity to remove U.S. citizens from the transatlantic slave trade "[violating] human rights".[46] The 1807 "Act Prohibiting Importation of Slaves" took effect the first instant the Constitution allowed, January 1, 1808. The United States joined the British Parliament that year in the first "international humanitarian campaign".[47]

In the 1840-1860 era abolitionists denounced the Fugitive Slave Clause and other protections of slavery. William Lloyd Garrison famously declared the Constitution "a covenant with death and an agreement with Hell."[48]

In ratification conventions, the anti-slavery delegates sometimes began as anti-ratification votes. Still, the Constitution "as written" was an improvement over the Articles from an abolitionist point of view. The Constitution provided for abolition of the slave trade but the Articles did not. The outcome could be determined gradually over time. Sometimes contradictions among opponents were used to try to gain abolitionist converts. In Virginia, Federalist George Nicholas dismissed fears on both sides. Objections to the Constitution were inconsistent, "At the same moment it is opposed for being promotive and destructive of slavery!" But the contradiction was never resolved peaceably, and the failure to do so contributed to the Civil War.[51]

"Great Compromise"[edit]

Main article: Connecticut Compromise

Roger Sherman (CT), although something of a political broker in Connecticut, was an unlikely leader in the august company of the Convention.[m] But on June 11, he proposed the first version of the Convention's "Great Compromise". It was like the proposal he made in the 1776 Continental Congress. Representation in Congress should be both by states and by population. There, he was voted down by the small states in favor of all states equal, one vote only. Now in 1787 Convention, he wanted to balance all the big-state victories for population apportionment. He proposed that in the second 'senate' branch of the legislature, each state should be equal, one vote and no more.[n] The motion for equal state representation in a 'senate' failed: 6 against, 5 for.[56]

"Men of original principles"

After these defeats, the delegates who called themselves the "old patriots" of 1776 and the "men of original principles" organized a caucus in the Convention. William Paterson (NJ) spoke for them introducing his "New Jersey Plan".[o] Roger Sherman (CT), a signer of the Declaration of Independence, was with them. Supporters explained that it "sustained the sovereignty of the states", while the Edmund Randolph (VA) "Virginia Plan" erased it. The Convention had no authority to propose anything not sent up from state legislatures, and the states were not likely to adopt anything new. The "nationalists" answered, The Convention could not conclude anything, but it could recommend anything.

"Patriots" said if their legislature knew anything about proposals for consolidated government, it would not have sent anyone. "Nationalists" countered, that it would be treason to withhold any proposal for good government when the salvation of the American republic was at stake. Three sessions after its introduction, the New Jersey Plan failed : 7 against, 3 for, 1 divided.[60] For nearly a month there was no progress; small states were seriously thinking of walking out of the Convention.[p]

Then June 25, the "original principles" men finally won a vote. The 'senate' would be chosen by the state legislatures, not the people, passed: 9 for, 2 against.[62] The basis of representation for both the 'house' and the 'senate' re-surfaced. Sherman tried a second time to get his idea for a 'house' on the basis of population and a 'senate' on an equal states basis. The "big states" got their population 'house' win, then his equal state 'senate' motion was dropped without a vote. The majority adjourned "before a determination was taken in the House." [63] Luther Martin (MD) insisted that he would rather divide the Union into regional governments than submit to a consolidated government under the Randolph Plan.

Sherman's proposal came up again for the third time from Oliver Ellsworth (CT). In the "senate", the states should have equal representation. Advocates said that it could not be agreed to, the union would fall apart somehow. Big states would not be trusted, the small states could confederate with a foreign power showing "more good faith". If delegates could not unite behind this here, one day the states could be united by "some foreign sword". On the question of equal state representation, the Convention adjourned in the same way again, "before a determination was taken in the House.".[67]

On July 2, the Convention for the fourth time considered a "senate" with equal state votes. This time a vote was taken, but it stalled again, tied at 5 yes, 5 no, 1 divided. The Convention elected one delegate out of the delegation of each state onto a Committee to make a proposal; it reported July 5. Nothing changed over five days. July 10, Lansing and Yates (NY) quit the Convention in protest over the big state majorities repeatedly overrunning the small state delegations in vote after vote. No direct vote on the basis of 'senate' representation was pushed on the floor for another week.

But the Convention floor leaders kept moving forward where they could. First the new 'house' seat apportionment was agreed, balancing big and small, north and south. The big states got a decennial census for 'house' apportionment to reflect their future growth. Northerners had insisted on counting only free citizens for the 'house'; southern delegations wanted to add property. Benjamin Franklin's compromise was that there would be no "property" provision to add representatives, but states with large slave populations would get a bonus added to their free persons by counting three-fifths other persons.

On July 16, Sherman's "Great Compromise" prevailed on its fifth try. Every state was to have equal numbers in the United States Senate. Washington ruled it passed on the vote 5 yes, 4 no, 1 divided. It was not that five was a majority of twelve, but to keep the business moving forward, he used precedent established in the Convention earlier. Now some of the big-state delegates talked of walking out, but none did. Debate over the next ten days developed an agreed general outline for the Constitution. Small states readily yielded on many questions. Most remaining delegates, big-state and small, now felt safe enough to chance a new plan.

Two new branches[edit]

Ruler as "chief magistrate"

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