CYBERLAND UNIVERSITY OF NORTH AMERICA

Dr. Almon Leroy Way, Jr.

University President & Professor of Political Science

FIRST PAGE

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


THE FEDERAL CONSTITUTIONAL CONVENTION OF 1787:

      WHAT IT WAS:

            America's first and only Federal Constitutional
            Convention.

      TIME:

            Late Spring and Summer, 1787.

      PLACE:

            Independence Hall, Philadelphia, Pennsylvania.

      MEMBERSHIP:

            Delegates elected by the state legislatures in 12
            of the 13 states.

                  12 of the 13 states sent delegates to the
                  Federal Constitutional Convention.

                  Rhode Island did not send delegates.

      LEGAL MANDATE:

            The Federal Convention was called by the CONFEDERA-
            TION CONGRESS, the U.S. Congress under the Articles
            of Confederation.

            The Convention was called for the SOLE purpose of
            drawing up and proposing amendments to the Articles
            of Confederation.

      ACTION TAKEN:

            The Convention ignored its instructions from the
            Confederation Congress and drew up an entirely new
            constitutional document--a constitutional document
            providing for a new and different scheme of national
            government.

      PRODUCT:

            Articles I-VII--the seven original articles of the
            Constitution of the United States.

THE CONDITIONS THAT GAVE RISE TO THE FEDERAL CONSTITUTIONAL CONVENTION OF 1787:

      (1)  A CENTRAL GOVERNMENT THAT WAS WEAK AND IMPOTENT:

           The national government of the U.S.A. lacked a suffi-
           cient grant of authority under the Articles of Confed-
           eration.

           Congress was too weak to deal effectively with Ameri-
           ca's serious problems after the Revolutionary War:

                 Such problems as runaway inflation, economic
                 depression, and threats from foreign powers.

      (2)  POLITICAL INSTABILITY AND UNBALANCED GOVERNMENT IN
           THE STATES:

           Many of the delegates to the Federal Constitution
           Convention perceived the danger of "TYRANNY OF THE
           MAJORITY" at the state level.

                 ["Tyranny of the majority," or "simple, un-
                 checked democracy":  unlimited rule by the
                 majority, or majoritarian dictatorship.]

           Because of the very high levels of political conflict
           within the states, delegates to the Federal Conven-
           tion feared that the state governments were about to
           collapse from internal dissention.

           The Convention delegates feared that majoritarian
           tyranny and political instability in the states
           would lead to mob violence, anarchy, and civil war.

                 [ANARCHY:  lawlessness; absence of government
                 and domestic order; general breakdown of law
                 and order.]

           All of this, the delegates feared, would result in
           the emergence of dictatorhiip by one man or a small
           clique--or, alternatively, the chaos would result in
           the young American nation being so weakened it would
           be subject to military conquest by one of the major
           foreign powers of the period.

ARTICLES OF CONFEDERATION (1781-1789):

      America' first national constitution, or the first attempt
      at a national constitution for the U.S.A.

      The document was prepared in 1776, but was not ratified
      until 1781.

      More or less legalized the arrangements under which the
      Second Continental Congress assumed governing power in
      1775 and 1776.

CHARACTER OF THE UNION OF STATES CREATED BY THE ARTICLES OF CONFEDERATION:

      THE CHIEF CHARACTERISTIC--STATE SOVEREIGNTY:

            The U.S.A. was a league or alliance of sovereign or
            virtually sovereign states.

                  The states were almost completely independent
                  political communities.

            By far, the greater portion of governmental authority
            remained in the states.

SCHEME OF GOVERNMENT PROVIDED FOR IN THE ARTICLES OF CONFEDERATION:

      THE U.S. CONGRESS--THE SOLE ORGAN OF GOVERNMENT SPECIFIED
      IN THE ARTICLES OF CONFEDERATION:

            The Confederation Congress was a UNICAMERAL legisla-
            ture--a lawmaking assembly consisting of only one
            house.

            The Congress was composed of delegates chosen by the
            state legislatures.

                  The delegates to Congress were not chosen by
                  direct popular vote.

                  They were appointed by their respective state
                  legislatures.

            The delegates to Congress were chosen for one-year
            terms, but subject, at any time, to recall by the
            state legislatures.

            As regards compensation for their services, the
            delegates were paid by their respective states, not
            by the central government.

            The delegates were not independent decisionmakers.

                  They were bound by and voted according to
                  INSTRUCTIONS received from their respective
                  state legislatures.

            Each state had only one vote on an issue before
            Congress.

                  A state, regardless of the size of its popula-
                  tion, had only vote on a decision made or ac-
                  tion taken by Congress.

            To pass a national law, a TWO-THIRDS MAJORITY VOTE
            of the 13 states in Congress was needed.

                  The enactment of national legislation required
                  the approval of an EXTRAORDINARY MAJORITY--a
                  majority significantly larger than a SIMPLE
                  MAJORITY (50.1 percent of those present and
                  voting).

            An amendment to the Articles of Confederation re-
            quired the approval of all 13 states. 

      THE CONSTITUTIONAL POWERS OF CONGRESS:

            The Articles of Confederation delegated a limited
            number of powers to Congress.

            Congress was granted power to--

                  (1)  Conduct foreign relations, i.e., send and
                       receive diplomatic representatives and
                       enter into treaties and alliances;

                  (2)  Borrow money on the credit of the United
                       States;

                  (3)  Issue bills of credit, i.e., print paper
                       money;

                  (4)  Regulate and set the standard of weights
                       and measures;

                  (5)  Declare and conduct war;

                  (6)  Raise armies and build, equip, and main-
                       tain a navy; 

                  (7)  Requisition the states for money and
                       supplies, i.e., REQUEST that the states
                       make VOLUNTARY CONTRIBUTIONS to the
                       central government;

                  (8)  Requisition the states for troops, i.e.,
                       REQUEST that the states lend their
                       respective militias to the national
                       government.

            Congress was limited to the powers EXPRESSLY dele-
            gated to it by the Articles of Confederation.

      THE NATIONAL EXECUTIVE--NO CONSTITUTIONALLY SPECIFIED
      EXECUTIVE ORGAN:

            The Articles of Confederation did not provide the
            central government with an executive branch, con-
            stitutionally separate from and largely independent
            of the legislature.

            Executive offices and departments in the central
            government were to be--

                  Created by ordinary legislation enacted by
                  Congress;

                  Subordinate and accountable to Congress.

WEAKNESSES OF THE CENTRAL GOVERNMENT UNDER THE ARTICLES OF CONFEDERATION:

      FINANCIAL AND ECONOMIC WEAKNESSES OF THE CENTRAL GOVERN-
      MENT:

            Congress lacked power to--

                  (1)  Regulate foreign and interstate commerce;

                       [FOREIGN COMMERCE:  Trade between the
                       U.S.A. and foreign countries; internation-
                       al trade.]

                       [INTERSTATE COMMERCE:  Trade among the
                       member states of the American Union--the
                       states comprising the U.S.A.]

                       [INTRASTATE COMMERCE:  Trade carried on
                       within the borders of a single state.]

                  (2)  Lay and collect taxes;

                  (3)  Prohibit or regulate the issuance of paper
                       currency by the individual states.

            Due to the absence of these powers in Congress and
            the lack of cooperation on the part of the states,
            the central government was unable to--

                  (1)  Pay off the national debt;

                  (2)  Establish and main a uniform currency for
                       the entire country;

                  (3)  Protect the rights of parties under con-
                       tracts legally entered into;

                  (4)  Establish a common system of tariffs and
                       customs duties for the country;

                  (5)  Prevent each state from setting up its
                       own system of tariffs;

                       [In setting up its own system of tariffs,
                       a state imposed tariffs on goods from
                       other states as well as on foreign im-
                       ports.  THE RESULT:  Interstate commerce
                       was paralyzed.]

                  (6)  Successfully negotiate trade treaties with
                       foreign governments;

                       [REASON:  Since the central government
                       could not force the states and their in-
                       habitants to abide by treaties it con-
                       cluded with foreign governments, the cen-
                       tral government was unable to live up to
                       its international obligations--its obliga-
                       tions under treaties.]

                       [THE RESULT:  America's international
                       trade was paralyzed.]

                  (7)  Cope with the problems of runaway infla-
                       tion and economic depression.

      MILITARY WEAKNESSES OF THE CENTRAL GOVERNMENT:

            Congress lacked important war powers.

                  Congress did not possess the power to FEDERAL-
                  IZE the state militias--i.e., the power to call
                  the state militias into the national military
                  service.

                  The Articles of Confederation granted Congress
                  authority to REQUISITION the states for troops.

                  However, Congress had no means of compelling
                  the states to comply with congressional requi-
                  sitions.

                        Each state was completely free to reject
                        outright or substantially reduce a con-
                        gressional requisition.

                  Moreover, Congress was unable to raise an
                  adequate national army or navy of volunteers,
                  due to the absence of a congressional taxing
                  power.

            These military weaknesses of the central government
            existed at a time when the U.S.A. was facing serious
            threats from foreign powers.

                  The U.S.A. faced threats from the British to
                  north in Canada, the Spanish and Amerindians
                  to the south in Florida, and the French and
                  Amerindians to the west.  And the Atlantic
                  Ocean to the East was controlled by the British
                  Navy.

            The young American nation, internally divided and
            militarily weak, was surrounded by enemies and poten-
            tial enemies.

      STRUCTURAL WEAKNESSES OF THE CENTRAL GOVERNMENT:

            THE REQUIREMENT OF AN EXTRAORDINARY MAJORITY FOR
            THE PASSAGE OF NATIONAL LEGISLATION:

                  An extraordinary majority--two-thirds of the
                  13 states--was required for the passage of
                  congressional legislation.

                  This made it extremely difficult for Congress
                  to enact national laws.

            THE CENTRAL GOVERNMENT'S LACK OF AUTHORITY TO ACT
            DIRECTLY ON INDIVIDUALS:

                  The central government lacked authority to act
                  directly on individuals, i.e., regulate the
                  conduct of individuals.

                  Therefore, Congress could not enforce its own
                  decisions.

                  Congress was dependent upon each state to en-
                  force national legislation within its borders.

            THE ABILITY OF THE STATES TO NULLIFY ACTS OF
            CONGRESS:

                  Each state could NULLIFY--i.e., set aside--an
                  act of Congress, as regards its application
                  and enforcement with the state's own borders.

                  If Congress enacted a law regulating the be-
                  havior of individuals, that law could not be
                  enforced within the borders of a given state
                  UNLESS the legislature of that state--

                        Enacted a state law making the national
                        law applicable to the inhabitants of the
                        state;

                        Provided for the enforcement of the na-
                        tional law by the state government.

                  If the legislature of a state objected to a
                  national law regulating individual behavior,
                  the state legislature, by simply taking no
                  action at all, could prevent enforcement of
                  the national law within the borders of the
                  state.

            THE REQUIREMENT OF UNANIMOUS RATIFICATION FOR THE
            ADOPTION OF CONSTITUTIONAL AMENDMENTS:

                  Unanimous ratification--i.e., approval by all
                  13 states--was required for amending or revis-
                  ing the Articles of Confederation.

                  This requirement of unanimous ratification
                  made constitutional change at the national
                  level virtually impossible.

                  No amendments were ever added to the Articles
                  of Confederation.

                        At least one state could be depended
                        upon to object to a proposed amendment
                        and thereby prevent its ratification and
                        adoption.

      THE CRITICAL WEAKNESS--WHY THE U.S. CONGRESS WAS UNABLE
      TO ENFORCE ITS DECISIONS:

            The critical weakness of Congress, as regards its
            ability or inability to enforce its decisions, lay
            in the fact that Congress was dependent upon the
            voluntary cooperation of the states--cooperation
            which the states were free to grant or withhold at
            will.

                  In short, the central government functioned
                  at the sufferance of the states.

            The postwar period was a most inopportune time for
            the central government to be dependent on the volun-
            tary cooperation of the states.

                  This was a period during which the states were
                  less and less inclined to cooperate.

                  The end of the Revolutionary War reduced the
                  sense of urgency that had helped unite the
                  states in joint cooperative action.

                  Therefore, the states tended to focus on their
                  conflicting interests, rather than on common
                  national interests.

                  There were very divisive conflicts of local and
                  regional interests, resulting in frequent dis-
                  putes among the states.

                        Example: The New England states versus
                        the Deep South (Georgia and South Caro-
                        lina).

                  These disputes often prevented joint decision-
                  making and action in Congress to deal with the
                  nation's postwar problems.

THE FEDERAL CONSTITUTIONAL CONVENTION--POINTS ON WHICH THERE WAS SUBSTANTIAL AGREEMENT:

      (1)  COMMITMENT TO CONSTITUTIONALISM:

           All the delegates believed in LIMITED GOVERNMENT
           under a written constitution.

           They all opposed UNRESTRAINED GOVERNMENT, whether by
           one person, a small group, or the majority.

      (2)  COMMITMENT TO REPUBLICANISM:

           All the delegates supported the proposition that the
           U.S.A. must be a REPUBLIC.

           Republican government was the only form of representa-
           tive government seriuosly considered by the Federal
           Convention.

      (3)  PERCEPTION OF THE NEED FOR A NATIONAL GOVERNMENT WITH
           SIGNIFICANTLY GREATER POWER:

           Most of the delegates supported the Convention's de-
           cision to draft and propose a constitution providing
           for a national government that would--

                 Possess and exercise significantly greater
                 power than the central government under the
                 Articles of Confederation;

                 REST ON THE PEOPLE--i.e., derive its legitimate
                 authority directly from the individual citizens,
                 rather than from the state governments;

                 GOVERN THE PEOPLE--i.e., exercise power directly
                 over individuals.

           In short, most of the delegates favored changing the
           central government of the U.S.A. from an alliance or
           league of virtually sovereign states into a genuine
           national government--

                 A national government with sufficient authority
                 to make and enforce decisions on matters of na-
                 tional concern--matters of concern to the whole
                 nation.

      (4)  REALIZATION THAT THE STATES WOULD HAVE TO RETAIN A
           DEGREE OF AUTONOMY:

           [AUTONOMY:  Partial self-government, or limited self-
           rule.]

           None of the delegates believed that there COULD be a
           total transfer of governmental authority from the
           states to the national government.

           With the exception of Alexander Hamilton, none of the
           delegates thought that there SHOULD be a total trans-
           fer of authority.

      (5)  REJECTION OF SIMPLE, UNCHECKED DEMOCRACY, OR STRAIGHT
           MAJORITY RULE:

           The delegates were virtually unanimous in their view
           that--

                 Simple, unchecked democracy was a very dangerous
                 type of government and should be avoided;

                 Safeguards should be built into the American
                 constitutional system to prevent tyranny of the
                 majority.

                       There should be built-in restraints as a
                       safeguard against majoritarian dictator-
                       ship.

      (6)  DETERMINATION TO ACHIEVE A STABLE SYSTEM OF BALANCED
           GOVERNMENT:

           Most of the delegates believed in balanced government.

           They wanted to construct a national government in
           which no single interest or faction would dominate,
           not even a majority interest or faction.

           They wished to create a government in which--

                 There would be several largely independent power
                 centers;

                 Governmental authority would be constitutionally
                 divided and distributed among the power centers;

                 The CONCURRENCE, or CONSENT, of each of the pow-
                 er centers would be required for the adoption
                 and carrying out of major decisions on national
                 public policy;

                 Each power center could, by WITHHOLDING ITS
                 CONSENT, VETO the policy proposals of the other
                 power centers.

           Toward the end of achieving a genuine balance of power
           in the national government, the delegates favored--

                 (1)  Some application of the principal of
                      "SEPARATION OF POWERS";

                 (2)  Strong emphasis on and application of the
                      principle of "CHECKS AND BALANCES";

                 (3)  STRICT LEGISLATIVE BICAMERALISM:

                      Most of the delegates favored--

                            A two-chamber (two-house) national
                            legislature;

                            Giving to each of the two chambers
                            the power of ABSOLUTE VETO over leg-
                            islation favored by a majority in
                            the other chamber.

           PURPOSE OF BALANCED GOVERNMENT:

                 To prevent a slim national majority from shaping
                 or making the decisions on controversial issues
                 of national public policy.

                 To make necessary a consensus (widespread and
                 substantial agreement) to decide a given policy
                 issue--a consensus representing all or most in-
                 terests within American society.

                       The interests represented in a given
                       organ of national government could
                       exercise its veto to protect themselves
                       against rival interests represented in
                       the other organs of government.

                       Governmental decisionmaking and action on
                       controversial issues of national policy
                       would be the result of political bargain-
                       ing and compromise among the varying and
                       competing interests.

                             The rights and vital interests of
                             any important minority within
                             American society could not be
                             ignored.











CONTINUED ON SECOND 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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