This was the dilemma facing the delegates who gathered in Philadelphia. Fortunately, they were well educated and experienced in law and government. Eight of them had signed the Declaration of Independence.
A third had served in the Continental Army during the American Revolution. Most had been members of the Continental Congress or the Congress under the Articles of Confederation. They ranged from young men, including James Madison and Alexander Hamilton, who were still in their thirties, to the eighty-year-old Benjamin Franklin. They were merchants, planters, and professionals who had a personal interest in creating and preserving a stable society. Some of them had read widely in history and philosophy and had studied other forms of government, from republics to monarchies.
As British subjects by birth, all the delegates shared in the British legal tradition dating back to the writing of the Magna Carta the Great Charter in , which stated that all people have rights that even a king has to respect. The delegates to the Constitutional Convention were also influenced by the ideas of philosophers from the European Enlightenment, the eighteenth-century intellectual movement that emphasized rational thought.
These philosophers had defined ideal governments as ones in which power was separated between executive, legislative, and judicial branches that could check and balance each other. As North Americans, the delegates had the additional example of the Iroquois Confederation, in which five Native American tribes in New York State governed themselves independently but also sent their chiefs to a Great Council to make decisions on larger issues of war and peace affecting the five tribes.
In writing a constitution the delegates departed from the practice in Great Britain, where the government was established not by a single document but rather by the entire body of British common law, the rulings of judges and parliamentary legislation.
The delegates were instead continuing a colonial tradition that dated back to the Mayflower Compact of , and other colonial charters. These systems had accustomed Americans to the idea of a single document serving as a contract between the people and their government.
He graduated from the College of New Jersey later Princeton University during the American Revolution, but his fragile health kept him from military service. He served in both the Continental Congress and the Confederation Congress, and was a delegate to the Annapolis Convention. Having lost faith in the government formed under the Articles of Confederation, he actively promoted the Constitutional Convention and took the lead in drafting the Virginia Plan, which offered the basic structure of the new government.
There he led the Federalists and sponsored the Bill of Rights. When Jefferson became President in he named Madison as his secretary of state. Later Madison succeeded Jefferson, serving as President from to During his administration, the United States declared war on Great Britain.
In August , British troops invaded Washington, D. Madison devoted his last years as President to rebuilding the capital and the national economy. At the time of his death in , James Madison was the last surviving delegate to the Constitutional Convention. Randolph introduced the Virginia Plan, which outlined a Congress with two bodies: a House of Representatives and a Senate. The new government would also have a separate executive branch, headed by a president, who would be both chief executive and commander in chief of the armed forces.
The plan also called for an independent judiciary. Although Randolph introduced the Virginia Plan, its actual author was James Madison, a young Virginian who served in the Confederation Congress and knew its weaknesses firsthand. Much of what we know today about the Constitutional Convention we owe to Madison, who kept detailed notes of the secret sessions.
In an effort to avoid public pressures that might hinder their ability to reach a consensus, the delegates had barred the doors and windows and conducted all their business away from public view. The official minutes of the convention recorded little of the debate between the delegates. His notes reveal the shared sentiments and disagreements among the delegates, the alternative proposals they considered, and the compromises they reached.
The Virginia Plan envisioned a republic based on popular consent. Elected officials would represent the people, although the people could vote directly only for members of the House of Representatives. State legislatures would elect senators. Members of an Electoral College, chosen by the people, would elect the President.
The Virginia Plan provided that each state would have representation in the House and Senate that reflected the size of their populations. Because every state had one vote under the old system, the smaller states, representing a minority of the population, could block the will of the majority. The smaller states refused to accept any plan that sacrificed their equality. They countered with a plan, introduced by William Patterson of New Jersey, that would have preserved the government structure under the Articles of Confederation.
The convention voted to reject the New Jersey Plan in favor of the Virginia Plan, granting the larger states the most members in both houses of the new Congress.
But the smaller states would not tolerate inequality, and they continued to fight for their rights. The convention reached an impasse, just as it planned to take a few days off to celebrate the Fourth of July. It appointed a special committee to try to work out the disagreement during the recess. Chaired by Roger Sherman of Connecticut, the committee split the difference between the two factions. This became known as the Connecticut Compromise, or the Great Compromise. The delegates accepted the compromise and, as an additional assurance to the smaller states, wrote into the Constitution that no state would lose its equality in the Senate without its consent which, of course, no state would give.
Through this compromise, the Constitution went on to create a single nation from a confederation of states. Yet, the states remained as permanent and integral parts of the new federal system. The absence of anyone representing Rhode Island served as a reminder to the other delegates that it would be folly for them to require unanimity in any new form of government.
They provided that the Constitution could be ratified by the vote of nine of the thirteen states. Nor would unanimity be needed for future amendments. Instead, the approval of two-thirds of both houses of Congress and three-quarters of the states would be required to ratify an amendment. From May until September , the delegates deliberated over all aspects of the new government.
They worked out its structure and listed the specific powers of each branch. On September 17, , most of the delegates signed the new Constitution. Otherwise, the signers had good reason to feel satisfied with their accomplishment. The elderly Benjamin Franklin pointed out at the end of their deliberations that the back of the chair where General Washington sat while presiding had a half-sun carved upon it. Afterward, some of the delegates traveled directly to New York City to serve in the Confederation Congress.
They presented the Constitution to the Congress, which transmitted it to the states for ratification. Proponents of the Constitution identified themselves as Federalists. Its skeptics became known as Anti-Federalists. The opponents feared the Constitution would create a powerful central government that would overwhelm the states and would run contrary to the democratic spirit of the American Revolution.
The Constitution was a pragmatic document that sought to balance the varied interests of the large and small states, the mass of people and the wealthier elite, and those who supported and those who opposed human slavery.
George Mason had never left his native Virginia until he traveled to Philadelphia as a delegate to the Constitutional Convention.
Born on a Virginia plantation in , Mason was a planter and also treasurer of the Ohio Company, which sold land to settlers moving westward. To assist his work with the Ohio Company, he read each of the colonial charters. At first he worked closely with his fellow Virginia delegate, James Madison, but soon their thinking diverged and Mason grew disillusioned. Mason feared the Constitution gave too much authority to the President over Congress, and too much power to the national government over the states.
He died in , suspicious of the Constitution to the end. The northern states had already begun to abolish slavery at the time of the Constitutional Convention, but the southern states were growing more dependent on slave labor. At the convention, southern delegates insisted that the Constitution not interfere with slavery.
Northerners agreed, both because they considered slavery a state matter, and because they felt that the southern states would never enter the Union without such a guarantee. The Constitution prohibited Congress from ending the importation of slaves before It also provided that slaves be counted as three-fifths of a person to determine taxation and representation in Congress.
At the time, slaves accounted for about 20 percent of the U. During the ratification of the Constitution, the most inflammatory issue was not its toleration of slavery but its lack of a bill of rights.
Thomas Jefferson, who had drafted the Declaration of Independence, was away serving as the American minister to France. In order to win ratification, the authors of the Constitution needed to explain and defend their handiwork to the people.
These essays have been reprinted in book form in many editions since then, and are known today as The Federalist. In one of his essays, Madison discussed the failure of past republics when one faction grew so strong that it dominated and suppressed all others. Madison predicted that the American republic would survive because of its size and its continued growth.
In a large republic, no single faction would predominate, he reasoned. This would prevent a powerful majority from suppressing the rights of the minority. As Americans moved westward into new territories, they would form new states that would join the Union and add even more groups into the equation.
Traditionally, conventions tended not to be written down in official documents. But, increasingly in recent decades, accounts of them have come to be included in texts published by bodies such as the UK government. These include the Cabinet Manual and the Ministerial Code. These laws provide for devolution, for the right to vote and the holding of elections, for the prohibition of discrimination, for the existence of the UK Supreme Court; and much else.
Yet from a practical viewpoint there is little to distinguish constitutional statutes from more regular laws dealing with, for instance, education or transport. An Act of Parliament can also vest significant discretionary authority — including, through statutory instruments, the ability to create new, secondary, legislation — in institutions or individuals such as ministers in the UK government.
Such power is exercised subject to limited parliamentary scrutiny; and is constitutionally significant since it can imply a strengthening of the UK government or executive at the cost of Parliament. The law and custom of the UK Parliament: the rules according to which the UK Parliament operates, enforceable by the parliamentary authorities.
They regulate the ways in which Parliament carries out, on behalf of the public, core constitutional functions such as passing laws and holding the UK government to account. Technically, it is the job of courts to interpret the rules, not to make them. But in practice, through identifying what the law is, judges can create it.
In the process they have established important features of the UK constitution. Courts have helped develop important concepts such as individual rights and the idea that public authorities are subject to limitations and do not possess arbitrary power. This tendency means that, to have direct internal force, international law must be provided for specifically by domestic legal measures such as Acts of Parliament.
Treaties, for instance, are supposed to bind the UK as a state on the international stage, and only form part of UK law if it is incorporated into it.
Though it is indirect, treaties can have an important constitutional impact. The Human Rights Act , for instance, is a major piece of constitutional legislation, the purpose of which is to incorporate the European Convention on Human Rights into UK law.
International law also helps form the background of assumptions that inform courts in their deliberations. They tend to proceed on the basis that, unless they make their intention to do so clear, legislators did not intend to contravene international law. As we have seen, the UK constitution is defined in a scattered way.
Making it out precisely can be difficult. Consequently, the views of expert observers who seek to impose some kind of coherence upon it can be of particular value. They can become so influential to perceptions of the system that they seem to become part of it.
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