Background to the Constitution

The Congress of the Articles of Confederation in February,1787, adopted a resolution calling for a convention of delegates from the thirteen states to be held in Philadelphia beginning in May “for the sole purpose of revising the Articles of Confederation.” Twelve of the states chose convention delegates. Only Rhode Island declined to do so. Fifty-five men attended some or all of the convention. The convention was supposed to begin on May 14 but did not do so because not enough delegates had arrived to constitute a quorum. James Madison arrived early on May 3, and he and other delegates from Virginia and Pennsylvania then met informally and prepared a new plan of government to present to the convention once it began. Finally, on May 25, enough delegates had arrived to constitute a quorum, and the convention began. The delegates unanimously elected General George Washington to preside as the President of the Convention. The delegates soon decided that instead of simply “revising the Articles of Confederation,” they would write a completely new constitution with a very different system of government from that which the nation had under the Articles.

After spending the entire summer behind closed doors in secrecy dealing with several difficult issues, on September 17, 1787, the new Constitution of the United States was completed. Thirty-nine delegates present at the end of the convention signed the Constitution. Three delegates – Edmund Randolph of Virginia, Elbridge Gerry of Massachusetts, and George Mason of Virginia—refused to sign it. The new Constitution was then sent to the states for ratification.

The framers of the new United States Constitution written at the 1787 Philadelphia convention understood that it represented a dramatic change in the government of the nation and that as a result there would be serious opposition to its ratification in some of the state conventions called for this purpose. Opposition was particularly strong in the state of New York, and those who supported the new Constitution understood that New York’s ratification (along with Virginia’s) was essential to the success of the entire effort to bring about this major change in the nation’s government. Alexander Hamilton, a resident of New York and an advocate for the new Constitution, decided that a propaganda effort was needed to sway citizens of New York. Hamilton recruited two other supporters of the new Constitution – John Jay, a fellow New Yorker, and James Madison, a Virginian—to join him. Together, writing anonymously under the pseudonym Publius, the three men penned a series of 85 essays, numbered 1 thru 85, explaining the weaknesses of the Articles of Confederation as well as the virtues of the new Constitution and why it should be adopted. These essays were published in the newspapers of New York City beginning in October,1787, and ending in May,1788. Jay wrote only five of the essays, Madison wrote 26, Hamilton wrote 51, and three were written by Hamilton and Madison together. Apparently, the essays did not have a significant impact and were not widely read at the time. Only years later were the 85 essays published together in book form and given the title, The Federalist Papers.
Written by James Madison, Federalist No. 10 defended the republican form of government proposed by the new Constitution. It is believed that Madison was responding to an article written in another New York newspaper by Brutus, a pseudonym used by a New York opponent of the Constitution named Robert Yates. Brutus had argued that republican government can only flourish in small republics such as the individual states where people share similar interests. Madison argues that in such small republics government is susceptible to the problem of “factions.” He defines a “faction” as a number of citizens united by some common interest adverse to the interest of other citizens or the interests of the community. He notes that “the most common and durable source of factions has been the various and unequal distribution of property. Those who hold, and those who are without property, have ever formed distinct interests in society.” He concludes that nothing can be done about the causes of “the mischiefs of faction” and that “relief is only to be sought in the means of controlling its effects.” He asserted that it is the great number of factions and their diversity in what he called an “extended republic” (the entire nation) that would make it more difficult for one faction to gain control. Groups would be forced to negotiate and compromise, thus arriving at solutions that would respect the interests of others.
In Federalist No. 39, James Madison responds to an opponent of the new Constitution who argued that it was neither “republican” nor “federal.” In the first part of the essay Madison defines or explores the structure of the “republican” government which he maintains the new Constitution creates. He defines a “republic” as “a government which derives all its powers directly or indirectly from the great body of the people.” Madison maintains that the new Constitution meets this requirement. He points out that the people directly choose the House of Representatives and indirectly elect U. S. Senators, the President, and judges. Furthermore, he points out, the Constitution forbids titles of nobility and guarantees each state “a republican form of government.”

In the second part of No. 39, Madison examines the “compound republic” created by the Constitution which is what we today call federalism. The Constitution, he points out, has both “national” and “federal” characteristics. The national government will have authority over individuals as national citizens, but in several ways, the new government will be federal in form. For example, he says, federalism is reflected in the method of ratification of the new Constitution where delegates to the state ratifying conventions will vote as citizens of their respective states. The federal form is also reflected, he notes, in the structure of the U. S. Senate where the states will be equally represented by senators chosen by their state legislature. Finally, Madison concludes, the fact that the individual states retain certain important powers is proof of the “federal” nature of the Constitution.

In Federalist No. 51, James Madison explains and defends the checks and balances system in the new Constitution. Each branch of the government is given checks over the other two branches. “Ambition must be made to counteract ambition,” he writes. In an often quoted passage, Madison proclaims: “It may be a reflection on human nature, that such devices [checks and balances] should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Madison also discusses the way republican government can serve as a check on the power of factions, and the tyranny of the majority. “[I]n the federal republic of the United States… all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.” All of the Constitution’s checks and balances, Madison concludes, serve to preserve liberty by ensuring justice, and “Justice is the end of government. It is the end of civil society.”

Opponents of the new Constitution argued that Article II which created the President as the chief executive would lead to a monarchy. In Federalist No. 70, Alexander Hamilton argues for the strong executive created by the Constitution rather than the lack of an executive under the Articles of Confederation. He argues that “energy in the executive is the leading character in the definition of good government. It is essential to the protection of the community against foreign attacks…to the steady administration of the laws, to the protection of property …to justice; [and] to the security of liberty ….”

Though some delegates had called for an executive council, Hamilton defended a single executive as “far more safe” because “wherever two or more persons are engaged in any common…pursuit, there is always danger of difference of opinion…bitter dissensions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority.” Hamilton also argued that a single executive would be watched “more narrowly” and vigilantly by the people than a group of people would be.

In Federalist No. 78, Alexander Hamilton addresses the new judicial branch of the government created by the Constitution. He responds to the Constitution’s opponents who argued that the national courts created by the Constitution were unnecessary because state courts could handle all lawsuits and also that the national courts were dangerous because they would leave the people at the mercy of a distant national judiciary. Hamilton argues that a national judiciary was needed to handle cases between citizens of different states and those involving the Constitution and national laws. In one of the most remarkable and important points he makes concerning the new judicial branch, he writes that “whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous … The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse … It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” He argues strongly as well for an independent judiciary when he writes, “For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ … The complete independence of the courts of justice is peculiarly essential in a limited Constitution.” Finally, Hamilton makes a strong argument in favor of the national judiciary’s power to judge actions of the legislative branch to determine if they are consistent with the Constitution: “It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the law is the proper and peculiar province of the courts.”
The sixteen Brutus Essays written between 1787 and 1790 argued against the ratification of the new United States Constitution written at the 1787 Philadelphia convention. These essays countered the Federalist essays which argued in favor of ratifying the Constitution. Historians believe that Robert Yates, a New Yorker, was the author of the Brutus Essays. He chose the pen name Brutus in honor of the Roman statesman who murdered Julius Caesar to prevent Caesar from overthrowing the Roman Republic.

Brutus was wary of giving the national government too much power. He wrote, “Many instances can be produced in which the people have voluntarily increased the powers of their rulers; but few, if any, in which rulers have willingly abridged their authority. This is a sufficient reason to induce you to be careful, in the first instance, how you deposit the powers of government.”

Brutus had several specific objections to the proposed new Constitution. He believed it would infringe on the peoples’ liberty and argued that a bill of rights was needed. He thought the necessary and proper clause of Article I, Section 8 gave Congress too much power. He also believed that giving the Supreme Court the power to interpret the Constitution would lead to even greater power for Congress and would infringe upon the powers of the states.

The Virginia Plan was prepared by James Madison of Virginia, but Edmund Randolph of Virginia introduced this proposal for a new government at an early meeting of the 1787 Constitutional Convention. The Virginia Plan illustrates Baron de Montesquieu’s influence on Madison since, like Montesquieu in 1748, it called for three separate, independent branches of government: legislative, executive, and judicial. It also provided for a bicameral legislative branch with members of one chamber chosen by the people and members of the other chamber elected by the first chamber. Representation for each state in both chambers would be in proportion to the number of free inhabitants in the state: the larger the number of free inhabitants in a state, the greater the number of members of both chambers that state would receive. The national legislature would have the power to overrule any state law that conflicted with “the articles of union” and to use force against states that resisted. The national legislature would choose a national executive as well as a national judiciary consisting of one or more supreme courts and lower courts. Finally, the executive and “a convenient number of the national judiciary” would comprise a Council of Revision with the authority to examine every act of the national legislature before it takes effect and every act of a state legislature before a veto thereof would be final. The Virginia Plan was supported by delegates from the more populous states. The U. S. Constitution as written and adopted at Philadelphia included several provisions of the Virginia Plan.
William Patterson of New Jersey introduced the New Jersey Plan at the 1787 Constitutional Convention. It was in large part a response to the Virginia Plan introduced earlier at the convention. According to the New Jersey Plan, in addition to the powers Congress had under the Articles of Confederation, Congress would have the power to raise revenue by taxing imported goods, “by stamps on paper, vellum or parchment,” and by postage on all letters passing through the post office. Unlike the Congress of the Articles, Congress would now also have the power to regulate trade and commerce. In addition, Congress would elect an executive to enforce all national acts and to direct military operations. The New Jersey Plan said nothing about changing the structure of Congress or the representation of states therein, and thus, Congress would remain a unicameral body in which each state would have one vote as it was under the Articles of Confederation. A national judiciary would be established consisting of a supreme court whose judges would be appointed by the executive and who would hold their offices during good behavior. Finally, the New Jersey Plan provided that acts of Congress and treaties would be the supreme law, and state judicial rulings and state laws to the contrary would be void. The New Jersey Plan was supported by delegates from the less populous states. The U. S. Constitution as written and adopted at Philadelphia included several provisions of the New Jersey Plan.
Roger Sherman of Connecticut introduced the so-called Connecticut Compromise using ideas found in both the Virginia Plan and New Jersey Plan at the 1787 Constitutional Convention. Because there was general agreement among the delegates that Congress would be the more powerful of the three separate branches of the new government, representation for each state in this new Congress proved to be the most hotly disputed issue. For that reason, the Connecticut Compromise which eventually settled the issue is also called “the Great Compromise.” It called for a bicameral U. S. Congress establishing a Senate and a House of Representatives. Each state would be equally represented in the Senate by two senators from each state regardless of the state’s population. Each state’s representation in the House of Representatives would be determined in proportion to the state’s population as determined by the census to be conducted every ten years. The greater a state’s population, the more members of the House of Representatives the state would be entitled to send. However, each state would be guaranteed a minimum of one member of the House regardless of the state’s population. Historians agree that adoption of the Great Compromise was crucial to the success of the convention and the new Constitution.