CYBERLAND UNIVERSITY OF NORTH AMERICA

Dr. Almon Leroy Way, Jr.

University President & Professor of Political Science

THIRD PAGE

NOTES ON THE FEDERAL CONSTITUTIONAL CONVENTION OF 1787
& THE CONSTITUTION OF THE UNITED STATES

(Continued)



RATIFICATION OF THE UNITED STATES CONSTITUTION


"RATIFICATION OF A CONSTITUTION"--A DEFINITION:
      "Ratification of a constitution" means formal acceptance by
      a political society, or community, of a proposed constitu-
      tion that has been drafted and submitted to the society for
      its decision on acceptance or rejection.

            The proposed constitution is formally adopted by the
            society and goes into effect as that society's su-
            preme law.

HOW THE UNITED STATES CONSTITUTION WAS RATIFIED & WHY:
      THE MODE OF RATIFICATION:

            The delegates to the Federal Constitutional Conven-
            tion incorporated into the proposed U.S. Constitution
            the following provision:

                  The Constitution of the United States would go
                  into effect for those states ratifying the doc-
                  ument when it had been ratified by CONVENTIONS
                  in NINE of the 13 states.  [Article VII, U.S.
                  Constitution]

                        When the Constitution had been accepted
                        by THREE-FOURTHS of the states, it would
                        go into effect and become the supreme law
                        of those states ratifying the document.
 
            By majority vote, the Federal Convention made two
            very important decisions:

                  (1)  The Convention voted to formally submit
                       to the 13 states the constitution it had
                       drafted and recommend that the states
                       ratify the constitution.

                  (2)  The Convention passed a resolution that
                       was to be submitted to the states, along
                       with the proposed U.S. Constitution.

                          The resolution called on the legisla-
                          ture of each state to provide for DI-
                          RECT POPULAR ELECTION of a STATE CON-
                          VENTION.

                          The popularly elected state convention
                          was to--

                             Meet and deliberate on the proposed
                             Constitution;

                             Decide for the state the question of
                             its ratification or rejection of the
                             U.S. Constitution.

            By the end of June, 1788, the Constitution had been
            ratified by popularly elected conventions in nine
            states.

            By the end of the decade, the Constitution had been
            ratified by such conventions in all 13 states.

      WHY THIS MODE OF RATIFICATION:

      (1)  The delegates to the Federal Convention sought to by-
           pass the state legislatures.

                 Why?

                       The opposition to ratification of the U.S.
                       Constitution was quite strong in many of
                       the state legislatures.

      (2)  The delegates sought to get around the ratification
           requirement in Article XIII of the Articles of Confed-
           eration:

                 The requirement that constitutional changes be
                 ratified by the legislatures of all the states.

      (3)  Many delegates believed that the Constitution should
           be ratified by an authority higher than a legislature.

                 A constitution founded on approval of the gener-
                 al American populace was expected to have a
                 higher legal and moral status.

                       Ratification of the U.S. Constitution by
                       popularly elected state conventions, rath-
                       er than by state legislatures, was more
                       likely to enhance the Constitution's po-
                       litical legitimacy.

NATURE OF THE POLITICAL CONFLICT OVER RATIFICATION:
      The issue of ratification or rejection of the U.S. Consti-
      tution was highly controversial in every part of the coun-
      try.

      In some states, the voters were almost evenly divided.

      THE FEDERALISTS:

            The Federalists were those persons who supported
            ratification of the U.S. Constitution.

            While there were notable exceptions, the Federalists
            tended to be strong in the seaports and the tidewater
            region of each state.

                  The seaports in particular and the tidewater
                  region in general had easy access to the ave-
                  nues of foreign and interstate commerce.

            In the seaports and the tidewater region, the econom-
            ic well-being of the inhabitants was dependent on
            high levels of activity in international and inter-
            state commerce.

                  The livelihoods of the tidewarter inhabitants
                  of the southern states were tied closely to
                  large-scale, commercial agriculture and to ex-
                  ports shipped out of the seaports to Great
                  Britain and other European countries.

                  The livelihoods of New England tidewater inhab-
                  itant were bound up with shipping, trade, and
                  manufacturing.

                  The nature of the tidewater economy of the mid-
                  dle states was a mixture of both southern and
                  New England characteristics.

            People in all three segments of the tidewater region
            were hurting economically, due to economic paralysis
            brought on by the weaknesses of the central govern-
            ment under the Articles of Confederation--

                  In particular, the central government's--

                        Lack of power to levy taxes and regulate
                        foreign and interstate commerce;

                        Inability to prevent state-imposed tar-
                        iffs and conclude favorable trade trea-
                        tries with Great Britain and other Euro-
                        pean countries.

      THE ANTIFEDERALISTS:

            The Antifederalists were those persons who opposed
            ratification of the U.S. Constitution.

            Although there were exceptions, the Antifederalists
            tended to be strong in the back-country regions from
            Georgia through what is now Maine (then part of Mas-
            sachusetts).

            In the back-country, the people were dependent for
            their livelihoods on small-scale agriculture and
            trade in local markets.

                  They did not depend, to any great extent, on
                  economic activity in foreign and interstate
                  commerce.

                  They were largely unaffected by the economic
                  paralysis that afflicted the seaports and the
                  tidewarter region.

                  Hence, inhabitants of the back-country tended
                  to--

                        Favor the political STATUS QUO;

                        Oppose significant constitutional change.

THE FEDERALIST (1787-1788):
      THE FEDERALIST, or FEDERALIST PAPERS, is a group of 85
      essays which--

            Emerged from the great debate over ratification of
            the U.S. Constitution.

            Many of the essays were written by James Madison,
            some by Alexander Hamilton, and a few by John Jay.

            Were addressed to the people of the State of New
            York.

            Appeared in a number of New York newspapers in 1787
            and 1788.

            Explained the principles of the proposed U.S. Consti-
            tution and how the new national government was ex-
            pected to operate under the Constitution.

            Presented the case for a strong and stable national
            government which would limit the powers of the state
            legislatures.

      The purpose of the FEDERALIST PAPERS was to persuade the
      voters of New York to elect a pro-Federalist state conven-
      tion--a state convention that would ratify the U.S. Consti-
      tution.

THE ANTIFEDERALIST POSITION:
      ANTIFEDERALISTS' OBJECTIONS TO THE U.S. CONSTITUTION:

            The Antifederalists believed that the proposed Con-
            stitution would give the central government entirely
            too much power.

            The Antifederalists also objected on grounds that the
            Constitution did not contain a Bill of Rights.

      THE ANTIFEDERALIST ARGUMENT:

            The new and more powerful national government, func-
            tioning under a constitution lacking a Bill of
            Rights, would seriously endanger individual liberty
            and the rights of the states.

      ANTIFEDERALISTS ON THE TYPE OF GOVERNMENT NEEDED TO SAFE-
      GUARD LIBERTY:

            The Antifederalists believed that liberty could be
            safeguarded only in a SMALL REPUBLIC--i.e., a repub-
            lican government over a small population dwelling in
            a small territorial area:

                  A republic in which those who governed were--

                        Physically close to the governed;

                        Closely checked and restrained by the
                        governed.

      WHY THE ANTIFEDERALISTS WERE OPPOSED TO ESTABLISHING A
      STRONG NATIONAL GOVERNMENT:

           The Antifederalists believed that a strong national
           government would--

                 Be distant from the people and destroy their
                 liberties;

                 Employ its sweeping powers to usurp the consti-
                 tutional authority of the states.

      THE KIND OF UNION OF STATES FAVORED BY THE ANTIFEDERALISTS:

            The Antifederalists were advocates and defenders of
            STATE SOVEREIGNTY.

            They wished to--

                  Keep the U.S.A. a loose union or association of
                  virtually sovereign states (as was the case un-
                  der the Articles of Confederation);

                  Severely limit and circumscribe the power of
                  the central government;

                  Keep most of the authority of government in the
                  hands of the states.

JAMES MADISON'S RESPONSE TO THE ANTIFEDERALISTS' ARGUMENT THAT LIBERTY WAS SAFEST IN A SMALL REPUBLIC:
      MADISON'S RESPONSE IN FEDERALIST 10 & FEDERALIST 51:

            Liberty is not safe in a small society governed by a
            direct democracy.

                  And neither is liberty in a small society gov-
                  erned by a republic characterized by--

                        A large unicameral legislative assembly;

                        A large number of small legislative
                        election districts;

                        Very short terms of office for legisla-
                        tors and other elected officers in the
                        government.

            Liberty is safest in a LARGE REPUBLIC.

                  In a large republic, there are many competing
                  interests and views--

                        Rather than a single prevailing interest
                        or view--an interest or view held by an
                        overwhelming and dominant majority which
                        is in a position to suppress and oppress
                        unpopular minorities and dictate conform-
                        ity and uniformity.

                  In a larger, more populous and diverse society,
                  persons and groups with interests and views at
                  odds with those of the majority find it easier
                  to gain political allies--i.e. to coalesce with
                  other persons and groups in order to more ef-
                  fectively oppose the majority, compete for po-                 
                  litical power, and further their own interests
                  and views.

            To govern a society, different interests and factions
            within the society must come together and form a ma-
            jority POLITICAL COALITION, or POLITICAL ALLIANCE.

                  In a larger republic, the political coalitions
                  that are put together are inclined to be--

                        More diverse and loosely held together;

                        Less radical, less rigid and doctrinaire,
                        and less demanding in the public policies
                        they advocate;

                        More moderate, with a greater tendency to
                        negotiate, bargain, and compromise with
                        their own internal component factions and
                        interests as well as with competiting
                        coalitions.

                  In a larger republic, a majority coalition is
                  more difficult to put together and can more
                  easily fall apart.

                        Compromise with and accomodation of the
                        views and vital interests of the differ-
                        ent groups and factions making up the
                        political coalition constitute the indis-
                        pensable condition for holding the coali-
                        tion together.

            In a republic the size of the U.S.A., with its huge
            variety of interests and views--

                  "... a coalition of a majority of the whole
                  society could seldom take place on any other
                  principles than those of justice and the gen-
                  eral good."  [James Madison, FEDERALIST 51.]

      THE IMPLICATION OF MADISON'S ARGUMENT:

            America's national government should be--

                  At some distance from the general populace;

                  Insulated from temporary popular moods and
                  passions.                        

            To ensure a national government with these features,
            legislators and the chief executive should serve dur-
            ing comparatively long terms of office.

                  Moreover, the chief executive and one house of
                  the legislature should be indirectly elected.

            WHY?

                  The popular majority does not always desire to
                  do what is morally or legally right.

                        It does not always seek justice.

                        It does not always protect liberty.

                  Liberty is threatened by--

                        Momentary popular moods and passions;

                        A cohesive political faction consisting
                        of a self-interested, overbearing popular
                        majority.

                  Such popular forces constitute a threat to lib-
                  erty equal to or greater than the threat posed
                  by a strong government controlled by one person
                  or a small group.

                        A popular majority can be and, in some
                        cases, has been tyrannical.

                        Tyranny of the majority can be an even
                        greater threat than AUTOCRACY (unlimited
                        rule by one) or OLIGARCHY (unlimited rule
                        by the few).

                              In a community governed by an un-
                              restrained and unbalanced govern-
                              ment supported and controlled by a
                              self-interested and overbearing
                              popular majority, the dissenting
                              individual or minority group cannot
                              realistically expect assistance
                              from popular opinion or relief in
                              the form of a popular revolt.

            If liberty is to be safe and secure, the government
            must be structured in such a manner that the majority
            and the minority are prevented from using that gov-
            ernment to abuse each other.

                  The majority as well as the minority must be
                  prevented from using governmental power to
                  achieve unwise or unjust ends.

                  Liberty must be safeguarded and protected from
                  majority encroachments as well as from minority
                  encroachments.

THE ISSUE OF THE ABSENCE OF A BILL OF RITHTS IN THE U.S. CONSTI- TUTION:
      THE ANTIFEDERALISTS' MOST POTENT CRITICISM OF THE PROPOSED
      CONSTITUTION:

            The Antifederalists most potent criticism of the pro-
            posed U.S. Constitution was the absence of a Bill of
            Rights in the document.

      WHY THE DELEGATES FAILED TO INCLUDE A BILL OF RIGHTS IN THE
      PROPOSED CONSTITUTION:

      (1)  The Framers of the U.S. Constitution did not totally
           ignore the matter of constitutional protection of in-
           dividual liberties.

           The Constitution, as drafted and proposed by the Fed=
           eral Constitutional Convention, DID contain a number
           of specific guarantees of individual liberty, or per-
           sonal liberty:

                 (a)  The right to trial by jury in criminal
                      cases;  [Article III, Section 2]
                 (b)  The right to a writ of habeas corpus;
                      [Article I. Section 9]
                 (c)  Protection against bills of attainder;
                      [Article I, Sections 9 & 10]
                 (d)  Protection against ex post facto laws;
                      [Article I, Sections 9 & 10]
                 (e)  Protection against religious tests (quali-
                      fications, or requirements) for holding
                      office in the national government;
                      [Article VI, paragraph 3]
                 (f)  Protection against state laws impairing the
                      obligation of contracts;  [Article I, Sec-
                      tion 10]
                 (g)  Guarantee that the citizens of each state
                      will enjoy the same BASIC, or FUNDAMENTAL,
                      rights enjoyed by the citizens of every
                      other state;  [Article IV, Section 2, PRIV-
                      ILEGES AND IMMUNITIES CLAUSE]
                 (h)  Narrowly defines the political crime of
                      "treason against the United States" and
                      specifies very strict legal requirements
                      that must be met and procedures that must
                      be followed in order to convict a person
                      of teason.

      (2)  Seven of the state constitutions contained Bills of
           Rights, or Declarations of Rights.

           In other state constitutions, the guarantees of indi-
           vidual liberty were scattered throughout each consti-
           tutional document.

           Because of this, the delegates at the Federal Conven-
           tion did not think it was necessary to include a com-
           prehensive Bill of Rights in the national constitu-
           tion.

      (3)  Those who drafted and proposed the U.S. Constitution
           did not think that liberty could be most effectively
           safeguarded by constitutional provisions specifying
           what government could and could not do.
          
                 A Bill of Rights is essentially a constitutional
                 list of "thy shalt nots" for the government.

                 According to the Framers' perceptions, a Bill of
                 Rights was not the most potent instrument for
                 limiting governmental power and protecting lib-
                 erty.

                 They tended to see balanced government as, by
                 far, the more effective means of limiting gov-
                 ernmental power and protecting liberty.

      (4)  In drafting the U.S. Constitution, the Framers saw
           themselves as designing a central government of spe-
           cific and strictly limited powers.

                 According to their perception, the national
                 government would be able to do only what the
                 Constitution specifically authorized it to do.

                 And nowhere in the proposed Constitution could
                 there be found authorization for the national
                 government to infringe upon individual liberty.

                       The seven original articles of the Consti-
                       tution drawn up by the Federal Convention
                       and submitted to the states contained no
                       provisions granting the central govern-
                       ment the authority to deprive individual
                       citizens of their fundamental rights and
                       libties.

THE FEDERAL BILL OF RIGHTS--THE IMPORTANT POLITICAL BARGAIN THAT EMERGED FROM THE RATIFICATION CAMPAIGN:
      The movement to obtain ratification of the U.S. Constitu-
      tion hit a snag early in the ratification campaign.

            The most difficult problem was the proposed Constitu-
            tion's lack of a Bill of Rights.

      The Federalist leaders soon learned that they would have to
      negotiate and bargain on the matter and offer an acceptable
      compromise, a compromise that would eliminate this tremen-
      dous obstacle to ratification--the absence of a Bill of
      Rights in the proposed Constitution.

            In order to obtain ratification of the Constitution
            by popularly elected conventions in some of the key
            states (e.g., Massachusetts, Virginia, and New York),
            the Federalist leaders promised to add a Bill of
            Rights to the Constitution, if and when it was adopt-
            ed.

                  The Federalist leaders agreed that the very
                  first Congress meeting under the new Constitu-
                  tion would propose a series of amendments pro-
                  viding for a Federal Bill of Rights.

                  This, of course, was done.  Twelve amendments
                  were proposed by Congress.  Ten of them were
                  ratified by the states in 1791, becoming the
                  the Federal Bill of Rights as well as the first
                  ten amendments to the U.S. Constitution.
















































CONTINUED ON FOURTH PAGE,
NOTES ON THE FEDERAL CONSTITUTIONAL
CONVENTION OF 1787 & THE CONSTITUTION
OF THE UNITED STATES






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THE AMERICAN CONSTITUTIONAL SYSTEM
Constitutional Democracy & the American Constitutional System


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