The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

The Problems of the Convention

As noted earlier, the Articles of Confederation contained a number of flaws. How might the Articles be revised to remedy such defects? As matters soon turned out, the Convention delegates found it desirable to sweep away the Articles altogether and substitute an entirely new Constitution.

Whether under the old Articles or through some new instrument of government, the delegates to the Philadelphia Convention were expected to devise means for improving the operation of the Articles of Confederation. Fundamentally, the Convention was called to accomplish the following objectives:

(1) Put the general government on a sound financial footing.

(2) Remove trade barriers, both with foreign countries and among the several States, and improve the flow of commerce.

(3) Provide sound money for the country, and improve both public and private credit.

(4) Set up means for strengthening the United States in the conduct of foreign policy—including enforcement of Britain’s obligations to the United States under the terms of the Peace of Paris, concluded in 1783 at the end of the War of Independence.

(5) Obtain a greater degree of cooperation among the thirteen States, and require the State legislatures to protect the rights of property owners.

(6) Maintain good order under a republican form of government by preventing rebellions and mob violence when the State governments might be incompetent for that important task.

(7) Give the whole country such advantages as uniform bankruptcy laws, copyrights and patents, a postal service, management of western territories and Indian relations, naturalization of immigrants, and in general provide important services that the State governments could not.

These tasks seemed sufficiently formidable, but as the Convention delved into its business, many delegates decided that they must do more than alleviate the weaknesses of the Articles of Confederation. In the short Preamble to the seven articles of the new Constitution, as the document took shape, the drafters of this new frame of government expressed their larger aims:

“… to form a more perfect union …” That would require satisfying both the large States and the small States, and reassuring people who dreaded the powers of a central government. It meant, in short, effective federalism and a new relationship between the national government and the State governments.

“… establish justice …” That meant a systematic Federal judiciary, Montesquieu’s “depository of laws,” with an independent Supreme Court.

“… insure domestic tranquillity …” That implied adequate military force to maintain peace and order, and to avert organized violence.

“… provide for the common defense …” That signified the need to give the general government the means by which to raise and support an army and a navy to defend the country.

“… promote the general welfare …” Here the Framers had in mind one of their principal objectives: to establish a government that promoted the common good, and not just the interests of the few.

“… and secure the blessings of liberty to ourselves and our posterity …” This reference to freedom meant that one of the major purposes of the Constitution was to protect individual liberty, not to sacrifice it for other goals.

In addition, the Convention delegates also had to resolve the following major difficulties if the Constitution was to be acceptable to the American people:

A. Political sovereignty—which certain philosophers believed to be indivisible—had to be divided between a Federal government and the several State governments, with jurisdiction over some public concerns assigned to the Federal government and over others reserved to the States. It would not be easy to persuade champions of State sovereignty—the people and their locally elected leaders—to surrender their States’ independence.

B. Arrangements had to be made for separation of powers among the executive, legislative, and judicial branches of government. A system of checking and balancing power in order to avert the one extreme of tyranny and the other extreme of anarchy would also have to be designed.

C. A legislative branch of the Federal government which would truly represent the people of the nation and yet not deny adequate representation to the State governments had to be established. In doing so, the delegates would have to reconcile the claim of the smaller States to equality with the larger States, and also the claim of the richer and more populous States to greater representation.

D. An independent executive, a President able to act decisively, especially in diplomatic and military affairs, yet limited in power so as not to menace the legislative and judicial branches, had to be created.

E. A Federal judiciary had to be set up, one that would be firm and just, competent to rule on cases transcending State boundaries and able to guard the Constitution, while not usurping the functions of the State courts or of the other branches of the Federal government.

F. Important political and legal institutions inherited from the Confederation, colonial governments, and the English constitution had to be incorporated in the new constitution. In addition, the new constitution would have to recognize and preserve longstanding rights that Americans had enjoyed under English law, such as trial by jury in criminal cases.

G. The delegates had to come to grips with the fundamental problem of politics, which is how to reconcile the need for order with the need for freedom—or, to put the matter another way, the problem of how to provide for both the security of the commonwealth and the personal rights of the citizen.

H. The delegates had to write a constitution that would be a practical instrument of government, effectively limiting power, and not a mere declaration of abstract goals. They would have to try to make the written constitution permanent, yet subject to amendment when change might become necessary.

Few of the delegates to Philadelphia had clearly in mind all of these responsibilities when they were appointed to the Philadelphia Convention. But gradually most of them became aware of how much they had undertaken, and how much the Articles of Confederation would have to be altered. Then the question was raised among them, especially by delegates from Delaware and Maryland, as to whether their States had authorized them to write a new constitution.

Despite such doubts, however, the large majority of delegates moved rather swiftly away from a proposed revision of the Articles toward the framing of a new political system. This was one reason why they decided to keep their proceedings secret. Word that a handful of men were preparing a political structure to supplant the Articles of Confederation presumably would have alarmed a large part of the population of every State.

No subsequent constitutional convention, in any country on any continent, has enjoyed such success as America’s in dealing with great difficulties. And yet the greatest difficulty facing the country was not surmounted when the Philadelphia Convention wound up its business in September of 1787. That difficulty was persuading the American public that the new Constitution offered them important advantages. The exercise of the art of persuasion would be undertaken by Hamilton, Madison, and Jay in The Federalist; by John Dickinson in his series of papers called The Letters of Fabius; and by the speeches and pamphlets of other notable delegates.

They were men of distinction, those gentlemen politicians, who could design such a lucid Constitution and persuade the skeptics of thirteen highly independent States to ratify it.