AP US: The Constitution (1788 - )

The Constitutional Convention (1787)


  • there is a recognised need for a revision of the Articles
  • May 1787 - 55 delegates from 12 states meet and begin to work on revising the government of the US
    • Washington, Franklin, James Madison, George Mason, Roger Sherman, and others gather
    • not there: Patrick Henry, Sam Adams, Thomas Paine
      • they thought that this meeting wasn't actually called to revise the Articles, but to completely replace them
      • John Adams, Jefferson are serving overseas, so they're not present either
    • men of wealth and property
      • want to protect the nation, and their own property
      • Rhode Island had been taken over by debtors, so there is concern
    • they are told to "revise" the Articles; however, most came with an intent of getting rid of the Articles and replacing them with something that will take the nation forward and last for a long time
    • they decide to hold the meetings in secret
    • recognise that government isn't working as is
    • no intentions of "revising"-actually intend to replace
    • so, they need something that can
      • prevent tyranny of majority or minority
      • sufficient powers for short and long term economic development
      • conduct a more effective foreign policy


  • do what was necessary and appropriate given current problems, in order to fix the nation
  • create a government that gave no single person to much power and create a system of checks and balances within the government
  • historian, Charles Beard:
    • says that the Founding Fathers were selfish, and wanted a government that would stimulate the economy, protect their property against mob rule, and allow them to collect loans
    • says that the Articles of Confederation would have developed into an effective government
    • however, there is no historical evidence for an effective confederal government
    • his thesis, therefore, has been disputed
  • others state that regional concerns were a motivation
    • stimulate local economies
    • for example, New Orleans was held by Spain, who hindered trade along the Miss. R. - the South had actually threatened secession over this issue
    • different economic interests dominate in different areas: mainly agriculture vs. industry

How to Govern?

  • the Virginia Plan has been prepared by James Madison
    • favoured by large states
    • bicameral legislature
      • lower house selected by people
      • upper house selected by lower house
    • judiciary system
    • executive president, serves 1 term, chosen by both houses
    • central government has much more power than in Articles, because it has a national executive and judiciary
  • New Jersey Plan
    • favoured by smaller states
    • unicameral legislature, each state gets one vote
    • executive without power
    • judiciary that can arbitrate cases that originate in state courts
  • conflict arises, split between bankers, industrial North, large states, Virginia Plan vs. debtors, rural South, small states. New Jersey Plan
  • also, there is some conflict over Western land

Great Compromise

  • bicameral legislature (Congress)
    • House of Representatives
      • based on population
      • elected by the people
      • 2 year term, can run for reelection
    • Senate
      • based on equality
      • 2 per state
      • the "equal Senate" is the only part of the Constitution that cannot be amended
      • 6 year term
      • chosen by the state legislatures (until 1913, 17th Amendment)
  • Executive, the President, is chosen by the electoral college
  • Judges are chosen by the President and approved by the Senate
  • during the early years, the Founding Fathers didn't trust the people, so the people only directly choose the House; they only indirectly choose the Electoral College
  • every two years, 1/3 of the Senate is up for reelection
  • House - have to be 25 yrs. and live in the state
  • Senate - have to be 30 yrs. and live in the state
  • the Constitution will be a series of compromises - these compromises are necessary to have a Constitution
  • compromises in trade
    • South agreed to let the federal government control domestic and foreign trade in return for clause that allows importation of slaves for another 20 years
    • government can tax imports, but not exports
    • all bills dealing with money must arise in the House; here, the representatives are directly elected by the people, and their shorter terms make them more accountable to the people
    • direct taxes on the states are assessed by population
  • 3/5 Compromise
    • 3/5 of a state's slave population would be counted for taxes and representation
    • slaves are property except when we want more representation; also, they're not property to avoid property taxes
    • shows how South tended to dominate discussion - but, monied Northern industry needed a new government to improve economy and manufacturing

The Constitution

Separation of Power

  • separate branches have separate functions
  • equal in stature
  • three separate branches are defined for the government
  • Article I: Legislative - makes the law
  • Article II: Executive - enforces the law
  • Article III: Judicial - interprets the law

Checks and Balances

  • a separate concept from Separation of Powers
  • ensures that one branch does not become too powerful
  • branches are separate (Separation of Powers) but equal (Checks and Balances)
  • Founding Fathers feared too much power in one group - they didn't want another king or another powerful Parliament
  • 17 clauses in Article I list the powers of Congress
    • but, the legislation must be signed into law by the President
    • Congress can override veto with 2/3 vote of each house
    • Supreme Court can declare the law unconstitutional
    • Also, both the House and the Senate must pass bills
  • President appoints judges, but Senate must approve with simple majority and Congress can impeach
  • House and Senate must pass bill in same form, then the President has four options:
    • sign it: becomes a law
    • not sign: it bill remains unsigned for ten days while Congress is in session, it becomes law without a signature
    • not sign: unsigned for ten days when Congress is not in session means the bill is vetoed, a "pocket veto"
    • veto: both House and Senate must re-pass, with a 2/3 majority, to override veto
  • for all appropriations of money, the bill must originate in the House
  • all treaties must be approved by 2/3 of the Senate (the last significant one that wasn't approved was Versailles, with Woodrow Wilson and the League of Nations)
  • appointments to Cabinet, Judiciary, Ambassadors, etc. must be approved by simple majority of Senate
  • Judges are appointed for life, after approval by Senate
    • they can only be impeached, resign, or die; they have a lifetime appointment
    • they're not beholden to anyone because of their life term; they are independent of whoever appointed them

Article IV: Relations of States With One Another

  • recognise the independence, but sameness, of states
    • documents, such as marriage licenses, etc., are valid in all states
    • extradition of criminals between states - tried for crimes in state of origin
    • "full faith and credit"
  • citizen in all states if citizen in one

Article V: Process of Amendment

  • (hopefully) amendments will improve the Constitution
  • the only part that cannot be changed is the equality of the Senate
  • the 3/4 state process of amendment was used to ratify the Constitution, which was technically illegal, because the Articles of Confederation required 100% agreement for amendment
  • Process
    • Propose
      • 2/3 vote in each house
      • national convention called by 2/3 of the states with express purpose of amendment
        • this idea was more valid when you only had 13 states; also, it provided a semblance of legality for the changing of the Articles
    • Ratify
      • 3/4 of the state legislatures approve
        • once a legislature has voted "yes", that vote cannot be changed, even if the people object and elect a new legislature to change it to "no"
        • a new legislature can change a "no" to a "yes", however, and that change will be final
      • 3/4 state conventions approve
      • has to be one or the other for all states - i.e. either all states use the legislature method or all states use the convention method
  • Constitution is proposed by a national convention, ratified by state conventions
    • only time conventions are used for both proposing and ratifying
  • for 26 out of the 27 Amendments to date, 2/3 of Congress proposed, 3/4 of state legislatures approved
  • for Amendment 21 (anti-Prohibition), state conventions were used to approve
  • 27th Amendment
    • in theory, limits Congressional pay
    • originally proposed as a part of the Bill of Rights - took 203 years to be passed
    • now, Amendments have a 7-year life span; if they're not passed after 7 years, the process has to start over

Article VI: General Provisions

  • Supremacy Clause
    • establishes the Constitution as the "supreme law of the land"
    • creates hierarchy of laws:
      1. Laws passed by Congress
      2. State constitutions
      3. State laws
      4. local ordinances
    • all of these are subject to judicial review, as per Article III

Article VII: Ratification

  • National Convention called for by 2/3 of the states proposed the Constitution
  • when 3/4 (9 out of 13) agree, the Constitution will be made the supreme law of the land
  • but, they knew that Virginia, New York, Pennsylvania, and Massachusetts would need to approve it for it to be accepted
    • Virginia and New York were of especial concern
    • Rhode Island and North Carolina did not ratify until after everyone else had already done so - they wanted a Bill of Rights to be included
      • however, they couldn't survive outside of the union of the Constitution
      • "Rogue Island" was going to become a foreign state

Factions of Ratification

  • Federalists
    • support Constitution
    • say a more powerful central government is needed to let the nation grow and deal with problems
    • supporters include James Madison (Father of the Constitution), John Jay (first Chief Justice of Supreme Court), George Washington (the nation's hero and "moral compass"), Ben Franklin
    • Alexander Hamilton will be the leader of this faction, and the political party that later arises from it; he is the governor of New York, a position with much power, so he pushed for a strong chief executive
    • say that the Constitution is necessary for pure survival
    • supported by people with money
    • believe it's the best way to strengthen the union in ways that the Articles of Confederation can't
  • Anti-Federalists
    • backcountry, agricultural background, debtors
    • philosophically opposed to a strong central government
    • led by Patrick Henry - didn't even attend the Constitutional Convention
    • also supported by John Hancock, George Mason (angered because it didn't include a Bill of Rights, which all state constitutions had)
  • The Federalist Papers
    • written by Hamilton, Madison, Jay
    • point out why the Articles of Confederation government is in adequate and why the Constitution is so much better
    • try to convince crucial people such as New York
    • try to legitimise elaborate system of separate powers, checks and balances, checks on checks - closed but flexible
    • Federalist #10 - a Republican form of government is the only one that will be able to deal with the nation's growth
    • Federalist #51 - "ambition must be made to counteract ambition" - Madison


  • gain more support by agreeing to add a Bill of Rights
    • Federalists thought a Bill of Rights was unnecessary - you select your representatives, and they'll support your rights
    • habeas corpus (right to be charged when imprisoned) was already included in the Constitution
    • promise to add Bill of Rights after the Constitution is ratified
    • James Madison also prepares a Bill of Rights
      • there were originally 12
      • 10 were approved
      • they list protections for the people, not the government
  • Federalists win 9 out of the 13 state needed to ratify
  • by July 1788, North Carolina would sign on (the Bill of Rights had been added)
    • Rhode Island finally joined as well


  • Changes - only 27 in over 200 years; the Constitution was made hard enough to change that changes can't be made on the spur of the moment
  • Congress - 17 specific clauses, but the "implied powers" clause allows Congress to deal with problems unforeseen by the Founding Fathers
  • not written in a political or intellectual vacuum
    • believe God created the universe, but left man to find the laws that govern nature
    • humans are created in God's image, so that which humans create should aspire to perfection
    • Calvin and Hobbes - can't trust man, because he is basically evil
    • these Enlightenment thinkers influenced the creation of the Constitution
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