Essay about American Constitutionalism

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Although colonial Americans declared their independence from Great Britain, their ideas about politics, religion, law, and individual rights, came from the British tradition. Respect for the law and for individual rights is part of the Magna Carta of 1215 and basic guarantees of individual rights were written into the English Bill of Rights of 1689. Colonial Americans demanded that these rights be given to colonists as well as English citizens.

Prior to the beginning of the American Revolution in 1775, colonists did attempt to work with the British. Examples include the New England Confederation, established to deal with the danger of Indian attacks, and the Albany Plan of 1754, which set out a plan for a general government in the colonies. The British rejected these attempts at cooperation and by 1764 were imposing taxes upon the colonists that were designed to raise revenue for England. The Sugar Act of 1764 taxed basic commodities in the colonies and was met with vehement opposition to what was called «taxation without representation.» The passage of the Quartering Act and the Stamp Act in 1765 intensified resentment toward the British. By 1770, the tension between colonists and British soldiers turned to violence during the Boston Massacre in which five colonists were killed. Committees of Correspondence were set up to send information between colonies regarding British actions. In 1773, in response to the Tea Act, Bostonians disguised as Indians dumped tea into the Boston harbor. This «Boston Tea Party» was followed in 1774 by the passage of the Coercive Acts in Great Britain. Americans protested and the momentum gathered. In 1774, the First Continental Congress adopted a «Declaration of Rights and Grievances,» but the British did not feel that this was a real threat to their authority. The War for Independence began in 1775 when Massachusetts minutemen met British soldiers at Lexington and lost eight of their men to gunfire. That same year the Second Continental Congress met and began to guide the efforts of the colonists in fighting the British. Thomas Paine's Common Sense pamphlet further intensified opinion against Great Britain and by July 4, 1776 a Declaration of Independence was adopted by the Continental Congress.

Until 1781, the colonies had no established common government. In 1781, the first constitution of the United States was ratified. It was called the Articles of Confederation and established a very loose alignment between the states with very little central authority and no enforcement provisions. The Articles of Confederation did not allow the central government to tax citizens or regulate commerce, although it did grant Congress the authority to make treaties with foreign nations and to make war. This is the area where the government as established was the most successful. However, this weak central government did not receive financial support from most of the states and on the domestic side the United States had severe economic problems and trade between states was chaotic. Without the Congress to regulate interstate commerce, states were left to fend for themselves and a series of trade wars-in which states sought to protect their own economies by imposing tariffs on goods imported from other states-followed. This led to foreclosures on mortgages and overflowing debtors' prisons, which culminated in Shays's Rebellion, a year-long shutdown of the courthouse in Northampton, Massachusetts led by Daniel Shays.

The problems of a weak central government were not limited to not having the ability to tax or regulate trade but also led to military vulnerability. As a result of these problems with the Articles of Confederation, Congress determined that a convention would be held to revise them. The Constitutional Convention began on May 29, 1787 with delegates from nine states representing the elite sector of the American population. Two major plans were submitted to organize the national government. Governor Edmund Randolph of Virginia presented the Virginia Plan, which favored large populous states and created a strong national government. William Paterson presented the New Jersey Plan, which gave equal representation to states and kept elements of the Confederation. As large states tended to be southern and smaller states tended to be northern, the two plans were also based upon regional tension. The Connecticut Compromise created a strong national government with two houses in Congress, which is known as a bicameral legislature, one based upon population (House of Representatives) and the other on equal representation (Senate). Southern states would still enjoy an advantage in the House of Representatives due to their large slave populations, so the three-fifths rule was adopted and slaves were counted as three-fifths of a person. This rule was used to determine population for representation and tax purposes and ultimately diminished the power of the southern states in the House of Representatives, working in some ways to check the expansion of slavery.

The issue of slavery would not be resolved in this original Constitution. After the Civil War, the thirteenth and fourteenth amendments to the Constitution would finally abolish slavery and repeal the three-fifths rule.

Under the original Constitution, only adult white men could vote, property qualifications existed in some states, and the only popularly elected offices at the national level were in the House of Representatives. Senators were chosen by state legislatures and the president would be chosen by an electoral college. Electors in the electoral college represented the total number of senators and representatives in Congress. Each state's electors met separately and cast votes for two people, one of whom could not be a resident of that state. Votes were counted before a joint session of Congress and whoever received a majority of the electoral votes became president, the individual with the second-highest number became vice-president. Presidential ties were settled in the House of Representatives, vice-presidential ties were settled in the Senate.

Only nine of the thirteen states would be required to ratify the proposed Constitution and this ratification process would take place in specially designed conventions, not in the state legislatures where opposition to the new constitution was concentrated. The opposition were called the Antifederalists. Those that supported the Constitution were called the Federalists. Federalists tended to be from smaller states and to be younger than Antifederalists by an average of 10 to 12 years. The Antifederalists were concerned that the new Constitution would create a tyrannical national government and they supported geographically smaller democratic states with decentralized power. They effectively argued for the inclusion of a Bill of Rights enumerating individual rights and freedoms.

The Federalists responded to Antifederalist arguments with a series of essays published in New York newspapers known as The Federalist Papers. Although these essays-written by James Madison, Alexander Hamilton, and John Jay-were designed to gain support for the new Constitution, they have had a tremendous impact on constitutional theory, law, and history since their publication. The principles of federalism, separation of powers, checks and balances, national supremacy, and judicial review are discussed and analyzed.

The U.S. Constitution uses devices to restrain the power of the national government. These include federalism, separation of powers, checks and balances, and popular sovereignty. Federalism is a system of government that geographically distributes power from the national government to state and local governments. Separation of powers (described in The Federalist Papers, Nos. 47 and 51) divides power between three national institutions: the legislative, the executive, and the judicial branches of government. Checks and balances is a system that ensures that the three branches share power and must work together to implement public policy, which has the affect of limiting the power of each branch of government. One example of checks and balances is the impeachment process by which public officials can be removed from office. The House of Representatives is given the sole power to impeach, but the Senate alone has the ability to convict and remove the accused-and even this requires a two-thirds vote. It was determined that the members of each of the branches would be chosen in different ways, represent different interests, and serve for differing amounts of time. Although there was precedent at the state level for judicial review (determining the constitutionality of laws and executive action) it was not mentioned in the Constitution. The case of Marbury v. Madison (1803) was the first example of the Supreme Court's use of judicial review to invalidate an act of Congress. However, as early as 1796, the Supreme Court had used judicial review to invalidate a state law in Virginia. Although popular sovereignty was not mentioned in the Constitution either, the idea that the people would be the source of all legal authority (rather than the state) was accepted by the writers of the Constitution. It was important that the Constitution be made the supreme law of the land and this was done with the «supremacy clause,» which made it clear that the Constitution and the federal laws would be superior to conflicting provisions in state constitutions and laws.

The Constitution has changed through the process of amendment. This process is described in Article V and requires two steps. Each amendment must go through a proposal process and a ratification process. Proposal can be by two-thirds vote in both houses of Congress or by national convention requested by two-thirds of the states (the United States never again successfully requested a Constitutional Convention). Ratification may be by approval of three-fourths of the state legislatures or by ratifying conventions in three-fourths of the states. The first ten amendments are called the Bill of Rights, and represent the Federalist response to the Antifederalist criticism that individual rights were not protected. There are now twenty-seven amendments to the Constitution, many of which are responses to the popular will.

Although the Constitution did not anticipate many of the developments in our political system (including the advent of political parties and a presidential cabinet) it was flexible enough to adapt to political realities. The Supreme Court has provided needed judicial interpretation of the Constitution and made it a living instrument responsive to the needs of the country.

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