Constitution of the United States

Publié le 2 mars 2007 par me

Constitution of the United State

I INTRODUCTION

Constitution of the , system of fundamental laws of the . The Constitution was drawn up by 55 delegates to the Constitutional Convention in Philadelphia during the summer of 1787 and ratified by the states in 1788. The Constitution defines distinct powers for the Congress of the , the president, and the federal courts. This division of authority is known as a system of checks and balances, and it ensures that none of the branches of government can dominate the others. The Constitution also establishes and limits the authority of the federal government over the states and spells out freedoms and liberties for citizens.

II FORCES THAT SHAPED THE CONSTITUTION

In 1774 the Parliament of Great Britain capped a series of abuses against the American colonies by imposing a tax on tea imports to the colonies. The colonies quickly agreed to convene a Continental Congress, which in 1776 appointed two committees—one to draft the Declaration of Independence and the other to prepare a “form of confederation” among the colonies. In 1778 this second committee produced the Articles of Confederation. They took effect in 1781 when Maryland, the last holdout state, ratified them.

The Articles of Confederation established a league of friendship among the states, but not a political union. Each state remained separate and sovereign (under self-rule). The central government consisted of a one-chamber Congress, in which each state had a single vote. Congress had few powers, lacking even the authority to impose taxes. Any congressional action required the approval of 9 of the 13 states. The government had no president and no central court.

As a result, Congress in the 1780s could not deal with serious national problems, such as the repayment of about $40 million in domestic debt and $12 million in foreign debts incurred during the American Revolution (1775-1783). States also incurred about $25 million in debt during the war. Small creditors, including soldiers who had lent money to the revolutionary cause, were starved for cash because the states were slow to repay. Many of these creditors were forced to sell their repayment notes to speculators at greatly reduced values, and the states feared mob violence. A depression in the mid-1780s threatened farmers in many states with foreclosures of their properties and jail.

In May 1786, delegates from each state were called to a trade convention in Annapolis, Maryland, to find common ground on waterway navigation rights and other issues. Only fives states sent delegates, and they decided to postpone any action. Before adjourning, the delegates in attendance asked their state legislatures to call a national convention to meet in Philadelphia the following May to investigate “important [government] defects … of a nature so serious as … to render the situation of the delicate and critical.”

Later in 1786 and in 1787, poor farmers led by Daniel Shays stormed several courthouses and tried to seize a federal arsenal. Local militias suppressed the uprising, known as Shays’ Rebellion, but it sent tremors through the 13 states. Some legislatures began to enact laws relieving debtors of their debts, which angered many wealthy creditors. States with good seaports took advantage of merchants in other states by imposing large import and export taxes. These and other problems required national solutions that neither the states nor the Confederation Congress had the political will to confront. The continuing crisis and the threat of further rebellions spurred the states to call a convention to revise the Articles of Confederation.

III THE CONSTITUTIONAL CONVENTION

The Constitutional Convention began on May 25, 1787, when a quorum of delegates arrived at Philadelphia’s Independence Hall, then known as the Pennsylvania State House. The distinguished gathering brought together nearly all of the nation’s most prominent men, including George Washington, James Madison, Alexander Hamilton, and the ailing Benjamin Franklin. As Thomas Jefferson wrote John Adams when he heard who had been appointed: “It is really an assembly of demi-gods.” Conspicuously absent were Jefferson, then in Paris as ambassador to France, and Adams, then in London as ambassador to .

At least one delegate came from each state except Rhode Island. Of the 74 delegates who had been appointed, 55 attended. Patrick Henry refused to attend, fearing that the convention would concentrate too much power in the central government. Another 18 delegates either declined to come or could not attend.

The delegates settled most of the scores of issues quickly. Four questions proved far more difficult to resolve: conflicts over how the people were to be represented in Congress; what to do about slavery; the powers of the president and the procedures for election to the office; and the powers and functions of the federal courts.

A Congressional Representation

On the key question of congressional representation, the convention eventually agreed on a compromise between Edmund Randolph’s Virginia Plan and William Patterson’s New Jersey Plan. Randolph proposed that members of both houses of Congress be apportioned (divided) according to the population of each state. Because the population in three states alone—Virginia, Pennsylvania, and Massachusetts—made up nearly half the country, Randolph’s plan would have given these populous states control of the nation. Patterson’s New Jersey Plan favored small states, giving all states equal representation in a one-chamber Congress regardless of population. Under the New Jersey Plan, the more numerous small states could unify against the larger ones. Not until mid-July did the delegates adopt a compromise originally put forth by Roger Sherman of Connecticut: Let the states have it both ways. Give the states an equal voice in the upper house, the Senate, and representation apportioned by population in the lower house, the House of Representatives. This bargain became known as the Great Compromise.

B Slavery

The Great Compromise sparked a heated and no less contentious dispute over slavery. Even though the words slave and slavery do not appear in the Constitution, the convention included ten provisions dealing with slavery. The most serious dispute arose over how to assign House seats to Southern states. If seats in the House of Representatives were apportioned according to state populations that included slaves, Southern states would gain an advantage because of their large slave populations. Northern states pushed to exclude slaves from the population calculations altogether. Southern states resisted, threatening to scuttle the entire Constitution. Finally abolitionists from northern states compromised. They agreed to the infamous clause in Article I that counted slaves as only three-fifths of a person and that barred Congress from ending the slave trade before 1808. The settlement over slavery led the convention to accept the Great Compromise.

C Presidency

Debate on the nature of the presidency and the manner of the president’s election dragged the convention into September. The delegates considered various proposals for a single three-year, six-year, and seven-year term. They debated whether the executive branch should be headed by a single leader or by many, and whether the chief executive should have the power to veto legislation, should be elected by Congress or the people, should be eligible to run for reelection, and should command the armed forces. Some delegates even hoped for a limited monarchy. Not until September 8, more than three months after the convention started, did the final shape of the presidency emerge: a single leader, elected to a four-year term and eligible for reelection, with authority to veto bills enacted by Congress. The president was also given command of the military and the power to appoint federal officials, subject to confirmation by the Senate.

D Judiciary

Early on at the convention, Randolph of Virginia had proposed a Council of Revision, composed of federal judges and the president, to veto laws made by both Congress and state legislatures. The delegates rejected variations of this plan four times because, as Pennsylvania’s Gouverneur Morris said, those who interpret the laws “ought to have no hand in making them.” Instead, the framers agreed to create a single Supreme Court and to permit Congress to create lower federal courts.

E Approval of the Constitution

After numerous votes settled the details, a committee on style and revision was assigned in early September to put the final results in language to submit to the people for ratification. This committee consisted of Hamilton, Morris, Madison, William Samuel Johnson of Connecticut, and Rufus King of Massachusetts. According to Madison, it was Morris who was largely responsible for the language and style of the Constitution.

The framers approved the text of the Constitution on September 15, and on September 17 all but three of the remaining delegates signed, attesting to “the unanimous consent of the States present.” This was no longer merely a compact between states, but a constitution for a new nation, recognized in the last two days when the framers adopted a preamble that began, “We, the People of the United States.”

IV IDEAS BEHIND THE CONSTITUTION

Many of the framers, especially Madison, studied history and political philosophy. Two political theorists had great influence on the creation of the Constitution. John Locke, an important British political philosopher, had a large impact through his Second Treatise of Government (1690). Locke argued that sovereignty resides in individuals, not rulers. A political state, he theorized, emerged from a social contract among the people, who consent to government in order to preserve their lives, liberties, and property. In the words of the Declaration of Independence, which also drew heavily on Locke, governments derive “their just powers from the consent of the governed.” Locke also pioneered the idea of the separation of powers. The French writer Baron de Montesquieu, who was the second major intellectual influence on the Constitution, further developed the concept of a separation of powers in his treatise The Spirit of the Laws (1748).

Colonial charters such as the Mayflower Compact of 1620 provided another inspiration for the Constitution. These charters seemed to give authority to the people to govern the territories to which they had migrated. Throughout the 18th century a vigorous debate raged over whether these charters permitted self-rule or subjected the colonists to the whims of royal governors. At their most radical, the colonial charters created autonomous legislatures with broad powers.

The framers of the U.S. Constitution sought a fundamental change from these earlier notions in two important ways. First, they put the Constitution above legislative power—indeed, above all governmental powers. The Constitution, particularly the Supremacy Clause of Article VI, establishes the “rule of law,” the idea that the government itself, including the president and Congress, must abide by the law.

The framers also rejected a basic assumption held by many democratic theorists, including Montesquieu, that true democracy was possible only in tiny territories with small, homogeneous populations. In famous passages in The Federalist Papers, Madison brilliantly argued that the old philosophers were wrong. Democracy could flourish, he reasoned, only in large territories with sizable populations and a diversity of interests that would block the ambitions of citizens to control the government. Individual interests and liberties could be most effectively protected in a system of representative government that was open to the voices of all. The people who agreed with this view of government and supported ratification became known as Federalists.

V STRUGGLE FOR RATIFICATION

The Constitution had to be ratified by nine states before it could take effect, and ratification nearly failed. In addition to the anti-Federalists, who opposed any sort of central government, many people feared that the proposed Constitution did not adequately safeguard their rights. The framers had miscalculated. They thought that because they had not given Congress specific power—for example, to interfere with freedom of speech—Congress would be unable to do so. Many doubted that Congress would show this restraint. In closely fought and often bitter battles in state conventions, the Constitution’s supporters secured victory only by promising to amend the Constitution at the first opportunity.

Delaware became the first state to ratify, on December 7, 1787. It was followed by Pennsylvania, New Jersey, , Connecticut, Massachusetts, Maryland, and South Carolina. On June 21, 1788, New Hampshire became the ninth state to ratify, thus making the Constitution legally effective. But without ratification by New York and Virginia, it was doubtful the Constitution could succeed. Virginia ratified four days later, but by the narrow margin of 10 votes out of 168 cast. New York finally ratified on July 26, by a vote of 30 to 27. North Carolina eventually ratified in 1789, and Rhode Island in 1790.

Madison, elected to the first Congress, pushed through a series of proposals that became the first ten amendments, also known as the Bill of Rights. These amendments safeguard freedom of speech, freedom of the press, and freedom of religion; guarantee a fair, open, and speedy trial for people accused of crimes; prohibit cruel and unusual punishments; and provide many other protections against tyrannical government. The states ratified the Bill of Rights in 1791.

VI OVERVIEW

The Constitution spells out in six articles (sections) the powers of the federal government and the states. Later amendments expanded some of these powers and limited others. The Constitution prevents tyrannical abuses of authority through the separation of powers: Each branch of government has its own responsibilities and cannot take action in areas assigned to the other branches. Congress enacts laws, leaving enforcement of the laws to the executive branch and interpretation of them to the judicial branch.

The Constitution does not include the term separation of powers. The first three articles establish the separation mechanism and mark out areas of responsibility for each branch of government. Article I vests (places) the legislative power of the federal government in Congress. Only Congress can enact general laws applicable to all the people, such as outlawing counterfeiting or promoting a national environmental policy.

Article II vests the executive power in the president, including the authority to appoint federal officials and to prosecute federal crimes. Congress cannot decide whether a particular person should be brought to trial for violating the law. Only the executive branch has that authority.

Article III vests the federal judicial power, including the power to conduct trials, in the Supreme Court and in other federal courts that Congress creates. Neither Congress nor the president or executive branch officials can declare a person guilty. Only a judge or jury can make these decisions.

No member of Congress may serve simultaneously as a member of the executive branch. This separation differs strikingly from the British practice, in which the prime minister and other executive officials are also members of Parliament.

The Constitution divides governmental powers in other ways, both within the federal government and between the federal government and the states. Article I splits the legislative power by creating a bicameral (two-chamber) legislature—the House of Representatives and the Senate. This article also details the specific powers that Congress can exercise, including imposing taxes, maintaining a military, and setting import duties. Congress cannot exercise powers not enumerated (listed) in the Constitution. Article I, however, grants Congress the right to make laws that it deems “necessary and proper” to carry out the enumerated powers. This implied power gives Congress wide leeway in lawmaking.

The Constitution leaves other powers to the states to exercise at their discretion, with two exceptions. First, Article VI says the Constitution is the “supreme law,” so the states cannot make laws that conflict with federal laws. Second, the Constitution guarantees to the people certain civil liberties (the right to be free of government interference) and civil rights (the right to be treated as a free and equal member of the country).

These liberties and rights are spelled out primarily in the Bill of Rights and in the 13th, 14th, 15th, and 19th amendments. Civil liberties include such cherished American freedoms as the freedom of speech, press, and religion, and the right to a fair trial. Civil rights include the right to vote and to be treated equally regardless of race or ethnic origins.

By dividing and limiting various governmental powers, the Constitution creates a system of checks and balances. If one branch threatens to become too powerful, other branches may act to block or thwart it. For example, if the president steps beyond his or her powers, Congress can refuse to provide funds, or the courts can rule the president’s actions unconstitutional.

VII THE INFLUENCE OF THE CONSTITUTION

The Constitution plays a role in virtually every aspect of life in the . Its very existence gives rise to constitutionalism—the expectation that government will abide by the rule of law and that heated political issues will be fought at the ballot box and in the courts, not on the streets. Even though this expectation has not always been met—the most searing exception being the Civil War—the is remarkable for its open political system that, over time, has dramatically expanded rights and freedom for increasing numbers of people.

A Defining the Role of the Federal Government

Although the Constitution created a new federal government, it took a courageous, brilliant, and farseeing Supreme Court chief justice to help realize the framers’ vision. In a series of striking opinions, Chief Justice John Marshall, who sat on the Supreme Court from 1801 until his death in 1835, forcefully built a body of law that gave constitutional strength to the new government. The defining moment came in 1803 when Marshall announced the doctrine of judicial review in Marbury v. Madison. It is for the courts, Marshall wrote in his decision, not other branches of government, to say what the Constitution means. By asserting the primacy of the judicial branch over the other branches of government, Marshall’s decision made the Supreme Court the authoritative interpreter of the Constitution. In this single decision, the Supreme Court won the right to strike down any law enacted by Congress or the states that conflicts with the Constitution.

The Marbury case made the Supreme Court the main arbiter (decision-maker) in struggles over state and federal power. Marshall used this power in 1819, in McCulloch v. Maryland, to give vast authority to Congress and the federal government. The case arose when Congress created a national bank, the Bank of the . Some states objected and tried to tax the bank out of existence. The Supreme Court decided that even though the Constitution did not explicitly give Congress the power to create a bank, Congress could do so under the Necessary and Proper Clause of the Constitution. The clause empowers Congress to take whatever actions it deems appropriate to achieve its legitimate goals, such as regulating the economy. In the nearly two centuries since the Marshall court’s broad interpretation of the Necessary and Proper Clause, the federal government has expanded into nearly every aspect of social and economic life.

The Supreme Court cannot force other branches of government to obey its decisions. In 1832 the court ruled in Worcester v. in favor of the Cherokees in a treaty dispute with the . Upon hearing of the decision, President Andrew Jackson is said to have retorted: “John Marshall has made his decision, now let him enforce it.” Jackson ignored the court’s decision, and stripped the Cherokee of their land. In the next century and a half, federal and state governments sometimes ignored judicial decisions. Some Southern states evaded the Court’s 1954 desegregation ruling in Brown v. Board of Education of Topeka for years. Arkansas, for example, refused to abide by the Court’s decision until 1957, when President Dwight Eisenhower sent federal troops to enforce it. But the principle of judicial review has historically been so widely respected that eventually the Court’s declaration of constitutional principles has prevailed.

B Regulating Business and Commerce

Congress has no broader power than that which it exercises under the Commerce Clause. Under the Articles of Confederation, uncontrolled economic competition between the states stifled the country’s economy. Conflicts over navigation rights and the practice of taxing goods from other states helped spur the states to call the Constitutional Convention. The framers sought to avoid such problems by assigning to Congress the power to regulate interstate and foreign commerce. In 1824 in Gibbons v. Ogden, Chief Justice Marshall gave the Commerce Clause a sweeping definition, establishing Congress’s commerce power as a broad tool for national policy making. Commerce is more than just buying and selling, he said, and the authority to regulate commerce includes the right to control nearly all areas of the national economy. This power grew throughout the 19th century, especially after the Civil War (1861-1865) as manufacturing and industry grew in importance in the American economy. The commerce power gave Congress the authority to create regulatory agencies that set railroad rates and conditions, regulated the quality of foods and drugs, and subjected more and more of the economy to governmental oversight.

In the late 19th century the Supreme Court narrowed the reach of the Commerce Clause, pointing to the Tenth Amendment of the Constitution, which reserves power to the states that is not delegated to the federal government. Activities such as manufacturing, the Court said, are not part of interstate commerce because they are local activities, and therefore only the states may regulate them. The Court struck down several congressional attempts to regulate labor practices, wages, and industrial conditions.

But in the late 1930s, in the midst of the Great Depression, the Supreme Court began to rethink these limitations. By 1940, when President Franklin D. Roosevelt had appointed several new justices, the Court proclaimed a new doctrine: Anything that affects interstate commerce falls within Congress’s commerce power. Since then, Congress has had a free hand to regulate industrial and economic activities in countless ways. Major civil rights laws outlawing discrimination, for example, were enacted under the commerce power.

In the 1990s the Supreme Court revived some of the earlier doctrines, putting brakes on Congress’s exercise of the commerce power for the first time in 60 years. In 1995 in v. Lopez, the Court struck down a federal law outlawing guns in schools across the country because there was no showing of an effect on commerce. Congress does not have a general power to police evils, the Court said. This power is for the states to exercise. The Supreme Court has also given new life to the Tenth Amendment, but not as broadly as in the early 20th century. In 1997 in Printz v.