Who wrote the U.S. Constitution?

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• Who wrote the U.S. Constitution?

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Form versus Administration

• For Forms of Government let fools contest
• Whateer is best administerd is best.
• Alexander Pope, 1733

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The earth belongs in usufruct to the living,
the dead have neither powers nor rights over it.

• I agree with this statement.
• I disagree with this statement.
• the legal right to use or enjoy something.

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The Problem of the Future

• Quod leges posteriores contrarias abrogant (i.e.,
  in a conflict between legislative acts of equal
  juridical status, the most recent enactment takes
  precedence.

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The American Solution A Dualist Constitution

• Decision by We the People Higher lawmaking
• Decision by the Government Ordinary lawmaking
• Higher lawmaking Trumps Ordinary lawmaking

• The series of political movements that have,
  from the Founding onward, tried to mobilize their
  fellow Americans to participate in the kind of
  engaged citizenship that, when successful
  deserves to carry the special authority of We the
  People of the United States.
• Bruce Ackerman

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Constitutional Politics versus Constitutional Law

• How did the text, including its amendments, come
  to be enacted?

• What did (or does) the enacted text, including
  its amendments, mean?

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The Constitution and American Life

• I hope that you have re-read the Constitution of
  the United States in these past few weeks. Like
  the Bible, it ought to be read again and again.
• Playing Historical Detective Approximately when
  was this statement made? By whom?

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Signers' Hall, National Constitutional Center

• Visiting the Past Would you sign the proposed
  Constitution of 1787?

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The Philadelphia Convention

• 12 States sent 55 delegatesRhode Island did not
  participate
• Convention was conducted in secrecy
• The delegates did not closely follow their
  instructions
• Instead of revising the Articles of
  Confederation, they proposed a new Constitution

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The Great Debate

• From May 29 to July 15, 1787
• Debating the Virginia and New Jersey Plans
• July 16 The Great Compromise
• July 17 to September 17, 1787
• Committee of Details

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Representation is Power

• Population
• Wealth
• For purposes of representation, should slaves be
  considered people or property?
• Should representatives be paid, and by whom?

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The Bi-Sectional Constitution

• The last five years have brought us serial
  accounts of the Constitutions original meaning
  a pact between sections that created a
  slaveholders union and then for the better part
  of a century protected an expansive slave economy
  from the possibility of government intrusion.
  The latest of these histories, George Van
  Cleves Slaveholders Union is the most
  comprehensive and as such the most convincing.
• Christopher Tomlins (2011)

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Structure and Compromises

• Federalism (enumerated powers)
• Representation (House and Senate)
• Slavery (3/5 clause slave trade fugitive slave
  clause)
• Separation of Powers (Legislative, Executive, and
  Judicial)

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Taking a Break

• While Washington was fishing, Madison was
  worrying, and Joseph Gilman was gossiping, the
  five members of the Committee of Detail were hard
  at work drafting a provisional constitution
  (Beeman, Plain, Honest Men, 263).

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The Committee of Detail, July 27 to August 5, 1787

• Oliver Ellsworth (CT)
• Nathaniel Gorham (MA)
• James Wilson (PA)
• Edmund Randolph (VA)
• John Rutledge (SC) Chair

Edmund Jennings Randolph (August 10, 1753
September 12, 1813).
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Edmund Randolphs Principles and Constitutional
Interpretation

• 1. to insert essential principle only, lest the
  operations of government should be clogged by
  rendering those provisions permanent and
  unalterable, which ought to be accommodated to
  times and events, and
• 2. to use simple and precise language, and
  general propositions, according to the example of
  the constitutions of the several states. (For
  the construction of a constitution of necessarily
  sic differs from that of law).

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Completing the Constitution

• Edmund Randolph completes a rough draft
• James Wilson and John Rutledge revise it.
• On August 3, 1787, the Committee of Detail turned
  their report over to John Dunlap and David
  Claypoole, the publishers of the Pennsylvania
  packet, to print copies for each of the delegate
  by Monday, August 6.

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Secrecy and Honor

• Dunlap and Claypoole carried out this task with
  remarkable discretion the pages of the Packet
  during the period immediately before and after
  the printing of the report are utterly devoid of
  any news relating to the committees
  deliberations. In our own age, the most likely
  source of any leak about the contents of a
  document as important as the Report of the
  Committee of Detail would be one (or more!) of
  the delegates themselves, but the men gathered in
  the Assembly Room operated by a different code.
• Richard Beeman, Plain, Honest Men, 276.

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Writing is Re-Writing

• Randolphs Preamble

• The Final Version

• We the people of the States of New Hampshire,
  Massachusetts, Rhode Island and Providence
  Plantations, Connecticut, New-York, New-Jersey,
  Pennsylvania, Delaware, Maryland, Virginia,
  North-Carolina, South-Carolina, and Georgia, do
  ordain, declare and establishing the following
  Constitution for the Government of Ourselves and
  our Posterity.

• We the people of the United States, in order to
  form a more perfect union, establish justice,
  insure domestic tranquility, provide for the
  common defense, promote the general welfare, and
  secure the blessings of liberty to ourselves and
  our posterity, do ordain and establish this
  Constitution for the United States of America.

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Supremacy Clause

• This Constitution, and the laws of the United
  States which shall be made in pursuance thereof
  and all treaties made, or which shall be made,
  under the authority of the United States, shall
  be the supreme law of the land and the judges in
  every state shall be bound thereby, anything in
  the Constitution or laws of any State to the
  contrary notwithstanding.
• Article VI

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An Omission

• No Bill of Rights
• The most absurd thing to mankind that ever the
  world saw.
• Patrick Henry

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The Concept of Legitimate Change

• that whenever any Form of Government become
  destructive of these Ends, it is the Right of the
  People to alter or to abolish it, and to
  institute new Government, laying its foundations
  on such Principles, and organizing its Powers in
  such Form, as to them shall seem most likely to
  effect their Safety and Happiness.
• Declaration of Independence, 1776

• The Congress, whenever two thirds of both Houses
  shall deem it necessary, shall propose Amendments
  to this Constitution, or, on the Application of
  the Legislatures of two thirds of the several
  States, shall call a Convention for proposing
  Amendments, which in either Case, shall be valid
  to all Intents and Purposes, as Part of this
  Constitution, when ratified by the Legislatures
  of three fourths of the several States or by
  Conventions in three fourths thereof, as the one
  or the other Mode of Ratification may be proposed
  by the Congress Provided that no Amendment which
  may be made prior to the Year One thousand eight
  hundred and eight shall in any Manner affect the
  first and fourth Clauses in the Ninth Section of
  the first Article and that no State, without its
  Consent, shall be deprived of its equal Suffrage
  in the Senate.
• Article V, U.S. Constitution of 1787

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What Wont Change In the Short Term or the Long
Run

• The Congress, whenever two thirds of both houses
  shall deem it necessary, shall propose amendments
  to this Constitution, or, on the application of
  the legislatures of two thirds of the several
  states, shall call a convention for proposing
  amendments, which, in either case, shall be valid
  to all intents and purposes, as part of this
  Constitution, when ratified by the legislatures
  of three fourths of the several states, or by
  conventions in three fourths thereof, as the one
  or the other mode of ratification may be proposed
  by the Congress provided that no amendment which
  may be made prior to the year one thousand eight
  hundred and eight shall in any manner affect the
  first and fourth clauses in the ninth section of
  the first article and that no state, without its
  consent, shall be deprived of its equal suffrage
  in the Senate.
• Article V

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Benjamin Franklin (1706-1790)

• "I have often ... in the course of the session
  ... looked at that sun behind the President
  without being able to tell whether it was rising
  or setting. But now at length I have the
  happiness to know it is a rising and not a
  setting sun."

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The Significance of Ratification

• Whatever veneration might be entertained for
  the body of men who formed our Constitution, the
  sense of that body could never be regarded as the
  oracular guide in expounding the Constitution.
  As the instrument came from them it was nothing
  more than the draft of a plan, nothing but a dead
  letter, until life and validity were breathed
  into it by the voice of the people, speaking
  through the several State Conventions. If we
  were to look, therefore, for the meaning of the
  instrument beyond the face of the instrument, we
  must look for it, not in the General Convention,
  which proposed, but in the State Conventions,
  which accepted and ratified the Constitution.
• Congressman James Madison, 1796

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Let the People Decide

• The ratification of the conventions of nine
  states, shall be sufficient for the establishment
  of this Constitution between the states so
  ratifying the same.
• Article VII
• Yes or No vote only

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Faith in the Future?

• It is in vain to say that the defects in this
  new Constitution may be remedied by the
  Legislature created by it. The remedy, as it may,
  so it may not be applied--And if it should a
  subsequent Assembly may repeal the Acts of its
  predecessor for the parliamentary doctrine is
  "quod leges posteriores priores contrarias
  abrogant" 4 Inst. 43. Surely this is not a ground
  upon which a wise and good man would choose to
  rest the dearest rights of human nature.
• Richard Henry Lee to Samuel Adams, October 5,
  1787.

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Constitutional Drama

• In mid-June 1788, a full nine months after the
  publication of the of the Philadelphia proposal,
  the Constitution was still struggling to be born,
  and its fate remained uncertain.
• Akhil Amar, Americas Constitution, 6.

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The First Game 7 of the First World Series

• Indeed, the ratification contest was the final
  national election, although it was more like a
  series of primaries than a presidential contest
  since the votes were cast not on a single day but
  successively, in one state after another. Over
  and over observers tried to calculate how what
  happened in one state would affect what came
  later, which itself served to bind the nation
  together more tightly.
• Pauline Maier, Ratification, xi.

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A Surprisingly Democratic Process

• Eight states elected conventions under special
  rules less stringent than the general voting
  requirements
• Two others all virtually all taxpaying adult
  white male citizens to vote.
• Only New Jersey used its normal voting
  requirements

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The Ratification Timelinehttp//www.usconstitutio
n.net/ratifications.html

• December 7, 1787 Delaware ratifies. Vote 30
  for, 0 against.
• December 12, 1787 Pennsylvania ratifies. Vote
  46 for, 23 against.
• December 18, 1787 New Jersey ratifies. Vote 38
  for, 0 against.
• January 2, 1788 Georgia ratifies. Vote 26 for,
  0 against.
• January 9, 1788 Connecticut ratifies. Vote 128
  for, 40 against.
• February 6, 1788 Massachusetts ratifies. Vote
  187 for, 168 against.
• March 24, 1788 Rhode Island popular referendum
  rejects. Vote 237 for, 2708 against.
• April 28, 1788 Maryland ratifies. Vote 63 for,
  11 against.
• May 23, 1788 South Carolina ratifies. Vote 149
  for, 73 against.
• June 21, 1788 New Hampshire ratifies. Vote 57
  for, 47 against. Minimum requirement for
  ratification met.
• June 25, 1788 Virginia ratifies. Vote 89 for,
  79 against.
• July 26, 1788 New York ratifies. Vote 30 for,
  27 against.
• August 2, 1788 North Carolina convention
  adjourns without ratifying by a vote of 185 in
  favor of adjournment, 84 opposed.
• November 21, 1789 North Carolina ratifies. Vote
  194 for, 77 against.
• May 29, 1790 Rhode Island ratifies. Vote 34
  for, 32 against.

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The Ratification Debates Predicting the Future

• The original interpretations of 1787-1788 could
  yield nothing more than reasonable explanations
  and predictions of what the Constitution would
  mean.
• Jack Rakove, Original Meanings, 160.

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Legitimating the Constitution

1. Would it work?
2. Could it provide a framework for political
   stability?
3. Would it facilitate or hinder the development of
   a market economy?
4. Who were We the People?

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Signers' Hall, National Constitutional Center

• Would you sign the proposed Constitution of 1787?

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Further Reading

• Akhil Reed Amar, Americas Constitution A
  Biography (Random House, 2005). Amar analyzes
  the text of the U.S. Constitution, including
  paying close attention to its ratification and
  later amendment.
• Jack Rakove, Original Meanings Politics and
  Ideas in the Making of the Constitution (Vintage
  Books, 1997). Rakove analyzes the political and
  ideological contexts for the writing and
  ratification of the U.S. Constitution.
• David Waldstreicher, Slaverys Constitution
  From Revolution to Ratification (Hill and Wang,
  2009). Waldstreicher analyzes the relationship
  of slavery and the U.S. Constitution.
• Gordon S. Wood, The Creation of the American
  Republic, 1776-1787 reissued ed. (The University
  of North Carolina Press, 1993). Wood provides a
  comprehensive analysis of constitution-making in
  the United States during the revolutionary era.
• Gordon S. Wood, Empire of Liberty A History of
  the Early Republic, 1789-1815 (Oxford University
  Press, 2009). Wood provides a comprehensive
  political history of the early republic.

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Useful Websites

• http//avalon.law.yale.edu/. Yale University Law
  Library has mounted primary sources on law,
  history, and government, including essential
  documents from the eighteenth century.
• http//www.loc.gov/rr/program/bib/ourdocs/Constitu
  tion.html. The Library of Congress provides
  essential information and links for teachers and
  students, including age-appropriate
  bibliographies.