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

Plans and Progress at Philadelphia

The more one reads about those delegates of 1787, the more one becomes aware that they came to Philadelphia with open minds—in the sense that few were committed in advance to any particular scheme for improving upon the Articles of Confederation. They believed strongly in certain political principles, but they did not advocate elaborately detailed political systems or master plans for the “perfect” commonwealth. The plans of government that were offered at the outset of the Convention were intended to serve merely as general guidelines.

Of course they took certain matters for granted. One was that the United States should remain a republic, as had been declared in 1776. By a republic, as we noted earlier, the Framers meant a state in which the sovereign power rests in the people as a whole but is exercised by representatives chosen by a popular vote. History furnishes examples of monarchic, aristocratic, and democratic republics. Sparta, Athens, and Rome, for example, were called republics, but their limited franchise gave them an aristocratic character. Venice was styled a republic though absolute power was exercised by a small body of hereditary nobles. In the modern world, the term republic is so much abused that even despotic regimes apply it to their forms of government. Thus the Russians called their system the Union of Soviet Socialist Republics (USSR), implying that it was both federal and republican. In actuality it was a centralized form of government, governed by an elite cadre of Communist Party members who were neither chosen by, nor politically responsible to, the people.

James Madison, in The Federalist, stated that “The two points of difference between a democracy and a republic, are, first, the delegation of the government, in the latter to a number of citizens elected by the rest; secondly, the greater number of citizens and the greater sphere of country over which the latter may be extended.” The American republic, according to Madison, then, was more precisely understood as a democratic and extended (or federal) republic, encompassing a broad geographical area and a large population. Thomas Jefferson, on the other hand, thought that “the first principle of republicanism” was simply rule by the majority. Perhaps the best definition is that offered by Judge Thomas Cooley of Michigan in his classic work, Principles of Constitutional Law (1890): “By a republican form of government is understood a government by representatives chosen by the people; and it contrasts on the one side with a democracy, in which the people or community as one organized whole wield the sovereign powers of government, and, on the other side, with the rule of one man, as king, emperor, czar, or sultan, or with that of one class of men, as an aristocracy.”

A republic seemed to be the only possibility for the United States in 1787. The Americans had no royal family, no hereditary nobility; and few of the delegates were inclined toward the idea of a king, even if elected. Most of the delegates did see the need, however, for an executive head and a judiciary as well as a representative assembly—something lacking under the Articles. The word “democracy” was often used in the convention as a term of opprobrium and disgrace, because “democracy” was then understood to mean mob rule. Shays’ Rebellion, fresh in the minds of the Framers and put down earlier that fateful year of 1787, was what “democracy” meant to the delegates. Not until the late 1820s did the term “democracy” become at all popular in America’s practical politics.

In addition, the delegates were generally agreed, from the beginning, that the Articles of Confederation needed strengthening and improvement. This was true even of Luther Martin, George Mason, and other delegates who favored a weak central government. It was clear enough to everyone that somehow a means must be found by which the “general” government (that is, the existing government of the Articles) might improve the flow of commerce and raise revenue, because the economy was stagnant and national debt was becoming ruinous. It was clear, too, that at least in foreign affairs the general government must be enabled to act with greater firmness and authority.

But there were also points of disagreement among the delegates, the most significant being the question of whether the United States should remain a confederacy of sovereign States or whether a new form of national government should be undertaken. Allied to this dispute was the argument as to whether large and small States should remain equal in power under any new constitution, or whether representation in a new national government should be in accord with population and wealth, and so confer a heavy preponderance of political power upon the more populous, larger states. By the end of the Convention in September, all of these and most other differences were resolved.