Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence (9 page)

The Constitutional Convention of 1787 was called together to amend the Articles of Confederation, the existing frame of government that sought to create a union among the thirteen independent and sovereign states. By the terms of the Articles of Confederation, unanimous approval of all of the state legislatures was required to amend any major feature of that frame of government. That provision proved to be fatally flawed, for it soon became apparent that it was impossible to attain unanimity on any matter of consequence. The delegates to the Constitutional Convention, having already gone forward not merely with amendments to the Articles of Confederation but rather with a decision to scrap the Articles altogether and create a vastly strengthened central government, felt no compunctions about changing the formula for amendment, providing two different routes by which the new Constitution could be amended. Amendments can be proposed either by a two-thirds vote of both houses of Congress or when two-thirds of the legislatures of the states agree on calling a national convention for the purpose of proposing amendments. Amendments proposed by either method must, in order to become part of the Constitution, receive the approval of three-quarters of the state legislatures or be approved by specially called conventions in at least three-quarters of the states. Most of the amendments to the Constitution have been first proposed by Congress and then adopted by three-quarters of the state legislatures, although the Twenty-first Amendment, repealing prohibition, was adopted by conventions in three-quarters of the states.

The amendment process is an arduous one, and for that reason, relatively few amendments have been passed during the more than two hundred years since the Constitution was adopted, making it one of the most concise written constitutions in the world. Ten of the amendments—those that we consider to be part of the Bill of Rights—were proposed by the First Congress of the United States and quickly adopted by the necessary number of states within a few years after the new government commenced operation. During the whole of the nineteenth century, only five amendments were adopted, three of them coming in the immediate aftermath of the Civil War and dealing with the rights of newly freed slaves. Twelve amendments were passed in the twentieth century. Among the most important were those authorizing a federal income tax, giving women a constitutional right to vote, providing for direct election of United States Senators, and guaranteeing all American citizens eighteen years or older the right to vote.

Article V also mentions three specific instances in which the Constitution is not subject to amendment: the provision prohibiting legislation affecting the international slave trade until 1808, the prohibition against direct taxation unless apportioned according to population, and the provision guaranteeing each state equal representation in the United States Senate.

At the time the Constitution was created, the Continental government, the individual governments of the states, and many private citizens had all accumulated substantial debt obligations. The first item in Article VI was designed to ensure the sanctity of those debt obligations.

Article VI contains the so-called federal supremacy clause, the assertion that in cases of conflict between a state law and a federal law, the federal law takes precedence. Over the course of the nation’s history, there have been hundreds of cases where the overlapping jurisdictions of the states and the federal government (for example, in matters relating to the regulation of commerce, industry, or environmental policy) have led to lawsuits. In general, although not uniformly, the federal supremacy clause has worked to incline courts to side with the federal government.

The final item in Article VI requires officials in both the state and federal governments to uphold the Constitution of the United States. This item is also the only place in the body of the Constitution where religion is explicitly mentioned. It is notable that this sole mention of religion reinforces the principle of separation of church and state, decreeing that there shall be no religious test for holding public office.

Having exceeded their instructions from the Continental Congress by scrapping the Articles of Confederation and drafting a wholly new frame of government, the framers of the Constitution also ignored the provision in the Articles of Confederation requiring unanimous approval of the state legislatures in order to amend that frame of government. The decision to allow the Constitution to go into operation after the approval of only nine of the thirteen states made it much easier to secure ratification of the document. Moreover, the device of submitting the document for consideration by specially called state conventions rather than by state legislatures avoided some of the natural tendencies of state legislators to protect their powers and interests. Most important though, the use of conventions, elected directly by the people of the states and called together solely for the purpose of considering the new plan of union, signified that the proposed new government was intended to be a government founded on “We the People of the United States,” rather than merely on “we the states.”

There were forty-one delegates present in the Assembly Room of the Pennsylvania State House on September 17, 1787. Thirty-eight of the delegates in the room signed the completed Constitution, with George Mason and Edmund Randolph of Virginia and Elbridge Gerry of Massachusetts refusing to add their assent. A forty-second delegate, John Dickinson of Delaware, had been suffering from debilitating headaches and went home a few days earlier, but he asked his Delaware colleague George Read to sign the document for him, bringing the total number of signatories to thirty-nine.

DELAWARE
Geo. Read
Gunning Bedford Jr.
John Dickinson
Richard Bassett
Jaco. Broom

 

MARYLAND
James McHenry
Dan of St. Thos. Jenifer
Danl. Carroll

 

VIRGINIA
John Blair
James Madison Jr.

 

NORTH CAROLINA
Wm. Blount
Richd. Dobbs Spaight
Hu Williamson

 

SOUTH CAROLINA
J. Rutledge
Charles Cotesworth Pinckney
Charles Pinckney
Pierce Butler

 

GEORGIA
William Few
Abr. Baldwin

 

NEW HAMPSHIRE
John Langdon
Nicholas Gilman

 

MASSACHUSETTS
Nathaniel Gorham
Rufus King

 

CONNECTICUT
Wm. Saml. Johnson
Roger Sherman

 

NEW YORK
Alexander Hamilton

 

NEW JERSEY
Wil. Livingston
David Brearley
Wm. Paterson
Jona. Dayton

 

PENNSYLVANIA
B. Franklin
Thomas Mifflin
Robt. Morris
Geo. Clymer
Thos. FitzSimons
Jared Ingersoll
James Wilson
Gouv. Morris

The framers of the original Constitution assumed that it was not necessary to include a “bill of rights” in their proposed plan for the union. The ostensible reason for the omission was that most of the state constitutions already possessed bills of rights, and therefore the inclusion of a bill of rights in the federal Constitution would be redundant. Another, more compelling reason may have been that when the idea of a bill of rights was raised in early September by Virginia delegate George Mason, the members of the Convention, tired and desperate to return home, feared that a debate on the subject might extend their stay in Philadelphia by many weeks, if not months.

The omission of a bill of rights proved to be both a tactical and strategic error. When the Constitution was submitted to the states for ratification, many of the critics of the Constitution pointed to the absence of a bill of rights as a fatal flaw in the document. As a consequence, the supporters of the Constitution, who called themselves Federalists, came forward with a promise to make the drafting of a bill of rights the first item of business when the new Congress convened after the ratification of the Constitution. On September 25, 1789, Congress presented to the states twelve amendments, ten of which received the necessary approval of three-quarters of the states on December 15, 1791. It is those ten amendments that are commonly referred to as the Bill of Rights. One of the two amendments not approved, dealing with congressional representation, has not proved of any significance in the operation of the Constitution. The other, dealing with congressional salaries, was eventually incorporated into the Twenty-seventh Amendment.