The Birth of the Constitution: An FPRI Primer

The Birth of the Constitution: An FPRI Primer

Birth of the Constitution Primer

As both a statement of philosophical purpose and a legal expression of the American desire to separate from the British Empire, the Declaration of Independence was a crucial milestone in the development of the United States of America.

Important as it was, however, the Declaration said nothing about the form of government the new nation would take, except to say: “these united Colonies are, and of Right ought to be Free and Independent States…”

Even as the colonies gathered in the Continental Congress, there was no formal legal arrangement between them. Each colony had its own origins and identity, ranging from Massachusetts, founded as a religious refuge for English Puritans, to Georgia, founded as a colony for debtors. Although they chose to cooperate to fight for independence, it was by no means automatic that they would accept limits on their own sovereignty for the common cause.

Building a system that would both live up to the spirit of the Declaration and satisfy the practical needs of the new nation—all while fighting a war against the mightiest empire in the world— proved, unsurprisingly, to be no easy task.

The same month that it approved the Declaration of Independence, the Continental Congress created a committee to draft a document outlining the government of the United States. By the fall of 1777, that committee produced the Articles of Confederation.

As its name suggests, the Articles created a loose union of sovereign states, declaring: “Each state retains its sovereignty, freedom, and independence,” while also promising to create “a firm league of friendship . . . for their common defense, the security of their liberties, and their mutual and general welfare…”

That was a difficult balance. The Confederation placed primary power in Congress, but did not create a Chief Executive, a national administrative bureaucracy, or a national judiciary. In Congress, each state had one vote no matter its size, and national decisions required nine states to agree. As a sign of how hard that was to reach that level of consensus, the Articles were approved by Congress in November 1777, but not formally ratified by all the states until May 1781.

As George Washington and his staff learned again and again, this arrangement made running a war very difficult. Individual state militias placed different limits on their soldiers, and Congress proved unable to secure a constant flow of funding to the Continental Army. By 1783, after the fighting ended but before the final ratification of the peace treaty, the problem of back pay to the army had become so serious that General Washington had to tamp down a planned march on Congress by his own troops. The Newburgh Conspiracy dissipated when Washington implored his officers to follow his patient example and respect Congress; nevertheless, barely averting a military coup clearly displayed the dangers of a weak federal government in wartime.

It got no easier in peacetime, as consistent national policies were undermined by the interests of the individual states. Congress faced a range of insoluble domestic and international problems. Domestically, legal disputes between citizens of different states challenged a system that had no federal judiciary. The national government also had no taxing authority, so it had no source of designated revenue, nor any means to collect it. There was not even a common currency, all of which undermined national fiscal and economic stability. Diplomatically, the United States faced challenges from both the Barbary pirates on the high seas and from British forces that refused to leave frontier fortifications, especially on the Great Lakes and in the Ohio Valley. If the United States could not effectively govern or defend its territory, then independence would remain a mirage.

The founders, even those who were firm believers in local government, quickly saw the need for change. Thomas Jefferson, for example, who had initially supported the Articles and jealously defended Virginia’s sovereignty, complained of national weakness in dispatches from abroad. Jefferson’s protégé James Madison took up the challenge, joining Washington’s protégé Alexander Hamilton (who already wanted a stronger national government) to develop concrete plans for constitutional reform. The first result of their efforts, the Annapolis Convention of September 1786, brought together representatives of the five largest states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) to debate a more perfect union. The four-day meeting completed a report to Congress calling for a full constitutional convention to meet in Philadelphia the following summer.

Representatives of all the states thus assembled in the very place where they had debated independence a decade earlier. Despite intense disagreement on key issues ranging from the powers of the President to the composition of Congress, that convention produced what we now know as the U.S. Constitution. Going beyond merely reforming the Articles of Confederation, the delegates drafted an entirely new plan for the government of the United States. While maintaining a federal structure, where the states continued to enjoy significant local power, the Constitution they presented on 17 September 1787 created a new national government possessing clear powers within its limited sphere.

The Constitution resolved many of the essential issues that plagued the Articles. For example:

  1. To balance the interests of large and small states, it created a bi-cameral Congress, in which the Senate represented the states equally (each state getting two seats, elected for six-year terms, initially selected by state legislatures) while apportioning the House of Representatives according to population (elected every two years and thus closer to the people). It entrusted the Senate with the power to approve federal office holders and treaties, while the House would be the place from which all tax and spending bills must originate;
  2. To provide for more stable administration of national laws and management of foreign affairs, it created an independent Executive Branch headed by a President elected separately from Congress, who would have the power to veto legislation and be commander-in-chief of all armed forces; and
  3. To manage disputes between states, it allowed for the creation of federal courts, and especially a supreme court.

Although the Constitution became the supreme law of the land within two years, it was far from perfect. Ratification was only possible after promising to add ten amendments right off the bat to guarantee basic rights to individuals and the states—a process we will discuss in a future primer. It has been amended seventeen times since then, and the meaning of its various phrases remains subject to ongoing debate. Most importantly, it took a Civil War less than a century after its ratification to resolve the Constitution’s biggest moral flaw, slavery.

But in comparison to the Articles of Confederation, which barely lasted a decade, the Constitution has been in force for more than two centuries, making it the oldest effective written constitution in the world.

Past success, of course, is not a guarantee of future triumphs. Now, more than ever, “We, the People of the United States” face the daily challenge of working within the system we have created, to ensure that the constitution continues to “secure the Blessings of Liberty to ourselves and our Posterity.”