The Constitution and Its Origins
Figure 2.1 Written in 1787 and amended twenty-seven times, the U.S. Constitution is a living document that has
served as the basis for U.S. government for more than two hundred years. (credit: modification of work by National
Archives and Records Administration)
2.1 The Pre-Revolutionary Period and the Roots of the American Political Tradition
2.2 The Articles of Confederation
2.3 The Development of the Constitution
2.4 The Ratification of the Constitution
2.5 Constitutional Change
The U.S. Constitution, see Figure 2.1, is one of the world’s most enduring symbols of democracy. It is also
the oldest, and shortest, written constitutions of the modern era still in existence. Its writing was by no means
inevitable, however. Indeed, in many ways the Constitution was not the beginning but rather the
culmination of American (and British) political thought about government power as well as a blueprint for
It is tempting to think of the framers of the Constitution as a group of like-minded men aligned in their
lofty thinking regarding rights and freedoms. This assumption makes it hard to oppose constitutional
principles in modern-day politics because people admire the longevity of the Constitution and like to
consider its ideals above petty partisan politics. However, the Constitution was designed largely out of
necessity following the failure of the first revolutionary government, and it featured a series of pragmatic
compromises among its disparate stakeholders. It is therefore quite appropriate that more than 225 years
later the U.S. government still requires compromise to function properly.
How did the Constitution come to be written? What compromises were needed to ensure the ratification
that made it into law? This chapter addresses these questions and also describes why the Constitution
remains a living, changing document.
Chapter 2 | The Constitution and Its Origins 38
2.1 The Pre-Revolutionary Period and the Roots of the American
By the end of this section, you will be able to:
• Identify the origins of the core values in American political thought, including ideas regarding
• Summarize Great Britain’s actions leading to the American Revolution
American political ideas regarding liberty and self-government did not suddenly emerge full-blown at the
moment the colonists declared their independence from Britain. The varied strands of what became the
American republic had many roots, reaching far back in time and across the Atlantic Ocean to Europe.
Indeed, it was not new ideas but old ones that led the colonists to revolt and form a new nation.
POLITICAL THOUGHT IN THE AMERICAN COLONIES
The beliefs and attitudes that led to the call for independence had long been an important part of colonial
life. Of all the political thinkers who influenced American beliefs about government, the most important is
surely John Locke (Figure 2.2). The most significant contributions of Locke, a seventeenth-century English
philosopher, were his ideas regarding the relationship between government and natural rights, which were
believed to be God-given rights to life, liberty, and property.
Figure 2.2 John Locke was one of the most influential thinkers of the Enlightenment. His writings form the basis for
many modern political ideas.
Locke was not the first Englishman to suggest that people had rights. The British government had
recognized its duty to protect the lives, liberties, and property of English citizens long before the settling of
its North American colonies. In 1215, King John signed Magna Carta—a promise to his subjects that he
and future monarchs would refrain from certain actions that harmed, or had the potential to harm, the
people of England. Prominent in Magna Carta’s many provisions are protections for life, liberty, and
property. For example, one of the document’s most famous clauses promises, “No freemen shall be taken,
imprisoned . . . or in any way destroyed . . . except by the lawful judgment of his peers or by the law of the
land.” Although it took a long time for modern ideas regarding due process to form, this clause lays the
foundation for the Fifth and Sixth Amendments to the U.S. Constitution. While Magna Carta was intended
to grant protections only to the English barons who were in revolt against King John in 1215, by the time
of the American Revolution, English subjects, both in England and in North America, had come to regard
the document as a cornerstone of liberty for men of all stations—a right that had been recognized by King
John I in 1215, but the people had actually possessed long before then.
The rights protected by Magna Carta had been granted by the king, and, in theory, a future king or queen
Chapter 2 | The Constitution and Its Origins 39
could take them away. The natural rights Locke described, however, had been granted by God and thus
could never be abolished by human beings, even royal ones, or by the institutions they created.
So committed were the British to the protection of these natural rights that when the royal Stuart dynasty
began to intrude upon them in the seventeenth century, Parliament removed King James II, already
disliked because he was Roman Catholic, in the Glorious Revolution and invited his Protestant daughter
and her husband to rule the nation. Before offering the throne to William and Mary, however, Parliament
passed the English Bill of Rights in 1689. A bill of rights is a list of the liberties and protections possessed by
a nation’s citizens. The English Bill of Rights, heavily influenced by Locke’s ideas, enumerated the rights
of English citizens and explicitly guaranteed rights to life, liberty, and property. This document would
profoundly influence the U.S. Constitution and Bill of Rights.
American colonists also shared Locke’s concept of property rights. According to Locke, anyone who
invested labor in the commons—the land, forests, water, animals, and other parts of nature that were free
for the taking—might take as much of these as needed, by cutting trees, for example, or building a fence
around a field. The only restriction was that no one could take so much that others were deprived of their
right to take from the commons as well. In the colonists’ eyes, all free white males should have the right to
acquire property, and once it had been acquired, government had the duty to protect it. (The rights of
women remained greatly limited for many more years.)
Perhaps the most important of Locke’s ideas that influenced the British settlers of North America were
those regarding the origins and purpose of government. Most Europeans of the time believed the
institution of monarchy had been created by God, and kings and queens had been divinely appointed to
rule. Locke, however, theorized that human beings, not God, had created government. People sacrificed a
small portion of their freedom and consented to be ruled in exchange for the government’s protection of
their lives, liberty, and property. Locke called this implicit agreement between a people and their
government the social contract. Should government deprive people of their rights by abusing the power
given to it, the contract was broken and the people were no longer bound by its terms. The people could
thus withdraw their consent to obey and form another government for their protection.
The belief that government should not deprive people of their liberties and should be restricted in its power
over citizens’ lives was an important factor in the controversial decision by the American colonies to declare
independence from England in 1776. For Locke, withdrawing consent to be ruled by an established
government and forming a new one meant replacing one monarch with another. For those colonists intent
on rebelling, however, it meant establishing a new nation and creating a new government, one that would
be greatly limited in the power it could exercise over the people.
The desire to limit the power of government is closely related to the belief that people should govern
themselves. This core tenet of American political thought was rooted in a variety of traditions. First, the
British government did allow for a degree of self-government. Laws were made by Parliament, and
property-owning males were allowed to vote for representatives to Parliament. Thus, Americans were
accustomed to the idea of representative government from the beginning. For instance, Virginia established
its House of Burgesses in 1619. Upon their arrival in North America a year later, the English Separatists
who settled the Plymouth Colony, commonly known as the Pilgrims, promptly authored the Mayflower
Compact, an agreement to govern themselves according to the laws created by the male voters of the
colony.1 By the eighteenth century, all the colonies had established legislatures to which men were elected
to make the laws for their fellow colonists. When American colonists felt that this longstanding tradition
of representative self-government was threatened by the actions of Parliament and the King, the American
THE AMERICAN REVOLUTION
The American Revolution began when a small and vocal group of colonists became convinced the king and
Parliament were abusing them and depriving them of their rights. By 1776, they had been living under the
rule of the British government for more than a century, and England had long treated the thirteen
Chapter 2 | The Constitution and Its Origins 40
colonies with a degree of benign neglect. Each colony had established its own legislature. Taxes imposed
by England were low, and property ownership was more widespread than in England. People readily
proclaimed their loyalty to the king. For the most part, American colonists were proud to be British citizens
and had no desire to form an independent nation.
All this began to change in 1763 when the Seven Years War between Great Britain and France came to an
end, and Great Britain gained control of most of the French territory in North America. The colonists had
fought on behalf of Britain, and many colonists expected that after the war they would be allowed to settle
on land west of the Appalachian Mountains that had been taken from France. However, their hopes were
not realized. Hoping to prevent conflict with Indian tribes in the Ohio Valley, Parliament passed the
Proclamation of 1763, which forbade the colonists to purchase land or settle west of the Appalachian
To pay its debts from the war and maintain the troops it left behind to protect the colonies, the British
government had to take new measures to raise revenue. Among the acts passed by Parliament were laws
requiring American colonists to pay British merchants with gold and silver instead of paper currency and
a mandate that suspected smugglers be tried in vice-admiralty courts, without jury trials. What angered
the colonists most of all, however, was the imposition of direct taxes: taxes imposed on individuals instead
of on transactions.
Because the colonists had not consented to direct taxation, their primary objection was that it reduced their
status as free men. The right of the people or their representatives to consent to taxation was enshrined in
both Magna Carta and the English Bill of Rights. Taxes were imposed by the House of Commons, one of
the two houses of the British Parliament. The North American colonists, however, were not allowed to
elect representatives to that body. In their eyes, taxation by representatives they had not voted for was a
denial of their rights. Members of the House of Commons and people living in England had difficulty
understanding this argument. All British subjects had to obey the laws passed by Parliament, including the
requirement to pay taxes. Those who were not allowed to vote, such as women and blacks, were considered
to have virtual representation in the British legislature; representatives elected by those who could vote
made laws on behalf of those who could not. Many colonists, however, maintained that anything except
direct representation was a violation of their rights as English subjects.
The first such tax to draw the ire of colonists was the Stamp Act, passed in 1765, which required that almost
all paper goods, such as diplomas, land deeds, contracts, and newspapers, have revenue stamps placed on
them. The outcry was so great that the new tax was quickly withdrawn, but its repeal was soon followed
by a series of other tax acts, such as the Townshend Acts (1767), which imposed taxes on many everyday
objects such as glass, tea, and paint.
The taxes imposed by the Townshend Acts were as poorly received by the colonists as the Stamp Act had
been. The Massachusetts legislature sent a petition to the king asking for relief from the taxes and requested
that other colonies join in a boycott of British manufactured goods. British officials threatened to suspend
the legislatures of colonies that engaged in a boycott and, in response to a request for help from Boston’s
customs collector, sent a warship to the city in 1768. A few months later, British troops arrived, and on the
evening of March 5, 1770, an altercation erupted outside the customs house. Shots rang out as the soldiers
fired into the crowd (Figure 2.3). Several people were hit; three died immediately. Britain had taxed the
colonists without their consent. Now, British soldiers had taken colonists’ lives.
Chapter 2 | The Constitution and Its Origins 41
Figure 2.3 The Sons of Liberty circulated this sensationalized version of the events of March 5, 1770, in order to
promote the rightness of their cause; it depicts British soldiers firing on unarmed civilians in the event that became
known as the Boston Massacre. Later portrayals would more prominently feature Crispus Attucks, an African
American who was one of the first to die. Eight British soldiers were tried for murder as a result of the confrontation.
Following this event, later known as the Boston Massacre, resistance to British rule grew, especially in the
colony of Massachusetts. In December 1773, a group of Boston men boarded a ship in Boston harbor and
threw its cargo of tea, owned by the British East India Company, into the water to protest British policies,
including the granting of a monopoly on tea to the British East India Company, which many colonial
merchants resented.3 This act of defiance became known as the Boston Tea Party. Today, many who do not
agree with the positions of the Democratic or the Republican Party have organized themselves into an
oppositional group dubbed the Tea Party (Figure 2.4).
Chapter 2 | The Constitution and Its Origins 42
Figure 2.4 Members of the modern Tea Party movement claim to represent the same spirit as their colonial
forebears in the iconic lithograph The Destruction of Tea at Boston Harbor (a) and protest against what they perceive
as government’s interference with people’s rights. In April 2010, members of a Tea Party Express rally on the Boston
Common signed a signature wall to record their protest (b). (credit b: modification of work by Tim Pierce)
In the early months of 1774, Parliament responded to this latest act of colonial defiance by passing a series
of laws called the Coercive Acts, intended to punish Boston for leading resistance to British rule and to
restore order in the colonies. These acts virtually abolished town meetings in Massachusetts and otherwise
interfered with the colony’s ability to govern itself. This assault on Massachusetts and its economy enraged
people throughout the colonies, and delegates from all the colonies except Georgia formed the First
Continental Congress to create a unified opposition to Great Britain. Among other things, members of the
institution developed a declaration of rights and grievances.
In May 1775, delegates met again in the Second Continental Congress. By this time, war with Great Britain
had already begun, following skirmishes between colonial militiamen and British troops at Lexington and
Concord, Massachusetts. Congress drafted a Declaration of Causes explaining the colonies’ reasons for
rebellion. On July 2, 1776, Congress declared American independence from Britain and two days later
signed the Declaration of Independence.
Drafted by Thomas Jefferson, the Declaration of Independence officially proclaimed the colonies’
separation from Britain. In it, Jefferson eloquently laid out the reasons for rebellion. God, he wrote, had
given everyone the rights of life, liberty, and the pursuit of happiness. People had created governments to
protect these rights and consented to be governed by them so long as government functioned as intended.
However, “whenever any Form of Government becomes destructive of these ends, it is the Right of the
People to alter or to abolish it, and to institute new Government.” Britain had deprived the colonists of their
rights. The king had “establish[ed] . . . an absolute Tyranny over these States.” Just as their English forebears
had removed King James II from the throne in 1689, the colonists now wished to establish a new rule.
Jefferson then proceeded to list the many ways in which the British monarch had abused his power and
failed in his duties to his subjects. The king, Jefferson charged, had taxed the colonists without the consent
of their elected representatives, interfered with their trade, denied them the right to trial by jury, and
deprived them of their right to self-government. Such intrusions on their rights could not be tolerated. With
their signing of the Declaration of Independence (Figure 2.5), the founders of the United States committed
themselves to the creation of a new kind of government.
Chapter 2 | The Constitution and Its Origins 43
Figure 2.5 The presentation of the Declaration of Independence is commemorated in a painting by John Trumbull in
1817. It was commissioned to hang in the Capitol in Washington, DC.
2.2 The Articles of Confederation
By the end of this section, you will be able to:
• Describe the steps taken during and after the American Revolution to create a government
• Identify the main features of the Articles of Confederation
• Describe the crises resulting from key features of the Articles of Confederation
Waging a successful war against Great Britain required that the individual colonies, now sovereign states
that often distrusted one another, form a unified nation with a central government capable of directing the
country’s defense. Gaining recognition and aid from foreign nations would also be easier if the new United
States had a national government able to borrow money and negotiate treaties. Accordingly, the Second
Continental Congress called upon its delegates to create a new government strong enough to win the
country’s independence but not so powerful that it would deprive people of the very liberties for which they
PUTTING A NEW GOVERNMENT IN PLACE
The final draft of the Articles of Confederation, which formed the basis of the new nation’s government,
was accepted by Congress in November 1777 and submitted to the states for ratification. It would not
become the law of the land until all thirteen states had approved it. Within two years, all except Maryland
had done so. Maryland argued that all territory west of the Appalachians, to which some states had laid
Link to Learning
Thomas Jefferson explains in the Declaration of Independence (http://www.openstax.org/l/
29DeclarationIn) why many colonists felt the need to form a new nation. His evocation of the natural
rights of man and his list of grievances against the king also served as the model for the Declaration of
Sentiments (http://www.openstax.org/l/29DeclarationSe) that was written in 1848 in favor of giving
women in the United States rights equal to those of men. View both documents and compare.
Chapter 2 | The Constitution and Its Origins 44
claim, should instead be held by the national government as public land for the benefit of all the states. When the last of these states, Virginia, relinquished its land claims in early 1781, Maryland approved the
Articles.4 A few months later, the British surrendered.
Americans wished their new government to be a republic, a regime in which the people, not a monarch,
held power and elected representatives to govern according to the rule of law. Many, however, feared that
a nation as large as the United States could not be ruled effectively as a republic. Many also worried that
even a government of representatives elected by the people might become too powerful and overbearing.
Thus, a confederation was created—an entity in which independent, self-governing states form a union for
the purpose of acting together in areas such as defense. Fearful of replacing one oppressive national
government with another, however, the framers of the Articles of Confederation created an alliance of
sovereign states held together by a weak central government.
Following the Declaration of Independence, each of the thirteen states had drafted and ratified a
constitution providing for a republican form of government in which political power rested in the hands
of the people, although the right to vote was limited to free (white) men, and the property requirements for
voting differed among the states. Each state had a governor and an elected legislature. In the new nation,
the states remained free to govern their residents as they wished. The central government had authority to
act in only a few areas, such as national defense, in which the states were assumed to have a common
interest (and would, indeed, have to supply militias). This arrangement was meant to prevent the national
government from becoming too powerful or abusing the rights of individual citizens. In the careful
balance between power for the national government and liberty for the states, the Articles of Confederation
favored the states.
Thus, powers given to the central government were severely limited. The Confederation Congress,
formerly the Continental Congress, had the authority to exchange ambassadors and make treaties with
foreign governments and Indian tribes, declare war, coin currency and borrow money, and settle disputes
between states. Each state legislature appointed delegates to the Congress; these men could be recalled at
any time. Regardless of its size or the number of delegates it chose to send, each state would have only one
vote. Delegates could serve for no more than three consecutive years, lest a class of elite professional
politicians develop. The nation would have no independent chief executive or judiciary. Nine votes were
required before the central government could act, and the Articles of Confederation could be changed only
by unanimous approval of all thirteen states.
WHAT WENT WRONG WITH THE ARTICLES?
The Articles of Confederation satisfied the desire of those in the new nation who wanted a weak central
government with limited power. Ironically, however, their very success led to their undoing. It soon
became apparent that, while they protected the sovereignty of the states, the Articles had created a central
government too weak to function effectively.
One of the biggest problems was that the national government had no power to impose taxes. To avoid any
perception of “taxation without representation,” the Articles of Confederation allowed only state
governments to levy taxes. To pay for its expenses, the national government had to request money from
the states, which were required to provide funds in proportion to the value of the land within their borders.
Link to Learning
View the Articles of Confederation (http://www.openstax.org/l/29ArticlesConf) at the National
Archives. The timeline for drafting and ratifying the Articles of Confederation
(http://www.openstax.org/l/29Arttimeline) is available at the Library of Congress.
Chapter 2 | The Constitution and Its Origins 45
The states, however, were often negligent in this duty, and the national government was underfunded.
Without money, it could not pay debts owed from the Revolution and had trouble conducting foreign
affairs. For example, the inability of the U.S. government to raise sufficient funds to compensate colonists
who had remained loyal to Great Britain for their property losses during and after the American Revolution
was one of the reasons the British refused to evacuate the land west of the Appalachians. The new nation
was also unable to protect American ships from attacks by the Barbary pirates.5 Foreign governments were
also, understandably, reluctant to loan money to a nation that might never repay it because it lacked the
ability to tax its citizens.
The fiscal problems of the central government meant that the currency it issued, called the Continental,
was largely worthless and people were reluctant to use it. Furthermore, while the Articles of Confederation
had given the national government the power to coin money, they had not prohibited the states from doing
so as well. As a result, numerous state banks issued their own banknotes, which had the same problems as
the Continental. People who were unfamiliar with the reputation of the banks that had issued the banknotes
often refused to accept them as currency. This reluctance, together with the overwhelming debts of the
states, crippled the young nation’s economy.
The country’s economic woes were made worse by the fact that the central government also lacked the
power to impose tariffs on foreign imports or regulate interstate commerce. Thus, it was unable to prevent
British merchants from flooding the U.S. market with low-priced goods after the Revolution, and
American producers suffered from the competition. Compounding the problem, states often imposed
tariffs on items produced by other states and otherwise interfered with their neighbors’ trade.
The national government also lacked the power to raise an army or navy. Fears of a standing army in the
employ of a tyrannical government had led the writers of the Articles of Confederation to leave defense
largely to the states. Although the central government could declare war and agree to peace, it had to
depend upon the states to provide soldiers. If state governors chose not to honor the national government’s
request, the country would lack an adequate defense. This was quite dangerous at a time when England
and Spain still controlled large portions of North America (Table 2.1).
Problems with the Articles of Confederation
Weakness of the Articles of Confederation
Why Was This a Problem?
The national government could not impose taxes on citizens. It could only request money from the states.
Requests for money were usually not honored. As a result, the national government did not have money to pay for national defense or fulfill its other responsibilities.
The national government could not regulate foreign trade or interstate commerce.
The government could not prevent foreign countries from hurting American competitors by shipping inexpensive products to the United States. It could not prevent states from passing laws that interfered with domestic trade.
The national government could not raise an army. It had to request the states to send men.
State governments could choose not to honor Congress’s request for troops. This would make it hard to defend the nation.
Each state had only one vote in Congress regardless of its size.
Populous states were less well represented.
The Articles could not be changed without a unanimous vote to do so.
Problems with the Articles could not be easily fixed.
Table 2.1 The Articles of Confederation suffered from many problems that could not be easily repaired. The
biggest problem was the lack of power given to the national government.
Chapter 2 | The Constitution and Its Origins 46
Problems with the Articles of Confederation
Weakness of the Articles of Confederation
Why Was This a Problem?
There was no national judicial system.
Judiciaries are important enforcers of national government power.
Table 2.1 The Articles of Confederation suffered from many problems that could not be easily repaired. The
biggest problem was the lack of power given to the national government.
The weaknesses of the Articles of Confederation, already recognized by many, became apparent to all as a
result of an uprising of Massachusetts farmers, led by Daniel Shays. Known as Shays’ Rebellion, the
incident panicked the governor of Massachusetts, who called upon the national government for assistance.
However, with no power to raise an army, the government had no troops at its disposal. After several
months, Massachusetts crushed the uprising with the help of local militias and privately funded armies,
but wealthy people were frightened by this display of unrest on the part of poor men and by similar
incidents taking place in other states.6 To find a solution and resolve problems related to commerce,
members of Congress called for a revision of the Articles of Confederation.
Chapter 2 | The Constitution and Its Origins 47
Shays’ Rebellion: Symbol of Disorder and Impetus to Act
In the summer of 1786, farmers in western Massachusetts were heavily in debt, facing imprisonment and the
loss of their lands. They owed taxes that had gone unpaid while they were away fighting the British during the
Revolution. The Continental Congress had promised to pay them for their service, but the national government
did not have sufficient money. Moreover, the farmers were unable to meet the onerous new tax burden
Massachusetts imposed in order to pay its own debts from the Revolution.
Led by Daniel Shays (Figure 2.6), the heavily indebted farmers marched to a local courthouse demanding
relief. Faced with the refusal of many Massachusetts militiamen to arrest the rebels, with whom they
sympathized, Governor James Bowdoin called upon the national government for aid, but none was available.
The uprising was finally brought to an end the following year by a privately funded militia after the protestors’
unsuccessful attempt to raid the Springfield Armory.
Figure 2.6 This contemporary depiction of Continental Army veteran Daniel Shays (left) and Job Shattuck
(right), who led an uprising of Massachusetts farmers in 1786–1787 that prompted calls for a stronger
national government, appeared on the cover of Bickerstaff’s Genuine Boston Almanack for 1787.
Were Shays and his followers justified in their attacks on the government of Massachusetts? What rights might
they have sought to protect?
2.3 The Development of the Constitution
By the end of this section, you will be able to:
• Identify the conflicts present and the compromises reached in drafting the Constitution
• Summarize the core features of the structure of U.S. government under the Constitution
In 1786, Virginia and Maryland invited delegates from the other eleven states to meet in Annapolis,
Maryland, for the purpose of revising the Articles of Confederation. However, only five states sent
representatives. Because all thirteen states had to agree to any alteration of the Articles, the convention in
Annapolis could not accomplish its goal. Two of the delegates, Alexander Hamilton and James Madison,
requested that all states send delegates to a convention in Philadelphia the following year to attempt once
again to revise the Articles of Confederation. All the states except Rhode Island chose delegates to send to
Chapter 2 | The Constitution and Its Origins 48
the meeting, a total of seventy men in all, but many did not attend. Among those not in attendance were
John Adams and Thomas Jefferson, both of whom were overseas representing the country as diplomats.
Because the shortcomings of the Articles of Confederation proved impossible to overcome, the convention
that met in Philadelphia in 1787 decided to create an entirely new government.
POINTS OF CONTENTION
Fifty-five delegates arrived in Philadelphia in May 1787 for the meeting that became known as the
Constitutional Convention. Many wanted to strengthen the role and authority of the national government
but feared creating a central government that was too powerful. They wished to preserve state autonomy,
although not to a degree that prevented the states from working together collectively or made them entirely
independent of the will of the national government. While seeking to protect the rights of individuals from
government abuse, they nevertheless wished to create a society in which concerns for law and order did
not give way in the face of demands for individual liberty. They wished to give political rights to all free
men but also feared mob rule, which many felt would have been the result of Shays’ Rebellion had it
succeeded. Delegates from small states did not want their interests pushed aside by delegations from more
populous states like Virginia. And everyone was concerned about slavery. Representatives from southern
states worried that delegates from states where it had been or was being abolished might try to outlaw the
institution. Those who favored a nation free of the influence of slavery feared that southerners might
attempt to make it a permanent part of American society. The only decision that all could agree on was the
election of George Washington, the former commander of the Continental Army and hero of the American
Revolution, as the president of the convention.
The Question of Representation: Small States vs. Large States
One of the first differences among the delegates to become clear was between those from large states, such
as New York and Virginia, and those who represented small states, like Delaware. When discussing the
structure of the government under the new constitution, the delegates from Virginia called for a bicameral
legislature consisting of two houses. The number of a state’s representatives in each house was to be based
on the state’s population. In each state, representatives in the lower house would be elected by popular
vote. These representatives would then select their state’s representatives in the upper house from among
candidates proposed by the state’s legislature. Once a representative’s term in the legislature had ended,
the representative could not be reelected until an unspecified amount of time had passed.
Delegates from small states objected to this Virginia Plan. Another proposal, the New Jersey Plan, called
for a unicameral legislature with one house, in which each state would have one vote. Thus, smaller states
would have the same power in the national legislature as larger states. However, the larger states argued
that because they had more residents, they should be allotted more legislators to represent their interests
Chapter 2 | The Constitution and Its Origins 49
Figure 2.7 The Virginia Plan called for a two-house legislature. Representation in both houses would be based on
population. A state’s representatives in one house would be elected by the state’s voters. These representatives
would then appoint representatives to the second house from among candidates chosen by the state’s legislature.
The New Jersey Plan favored maintaining a one-house Congress with each state being equally represented.
Slavery and Freedom
Another fundamental division separated the states. Following the Revolution, some of the northern states
had either abolished slavery or instituted plans by which slaves would gradually be emancipated.
Pennsylvania, for example, had passed the Act for the Gradual Abolition of Slavery in 1780. All people
born in the state to enslaved mothers after the law’s passage would become indentured servants to be set
free at age twenty-eight. In 1783, Massachusetts had freed all enslaved people within the state. Many
Americans believed slavery was opposed to the ideals stated in the Declaration of Independence. Others
felt it was inconsistent with the teachings of Christianity. Some feared for the safety of the country’s white
population if the number of slaves and white Americans’ reliance on them increased. Although some
southerners shared similar sentiments, none of the southern states had abolished slavery and none wanted
the Constitution to interfere with the institution. In addition to supporting the agriculture of the South,
slaves could be taxed as property and counted as population for purposes of a state’s representation in the
Federal Supremacy vs. State Sovereignty
Perhaps the greatest division among the states split those who favored a strong national government and
those who favored limiting its powers and allowing states to govern themselves in most matters.
Supporters of a strong central government argued that it was necessary for the survival and efficient
functioning of the new nation. Without the authority to maintain and command an army and navy, the
nation could not defend itself at a time when European powers still maintained formidable empires in
North America. Without the power to tax and regulate trade, the government would not have enough
money to maintain the nation’s defense, protect American farmers and manufacturers from foreign
Chapter 2 | The Constitution and Its Origins 50
competition, create the infrastructure necessary for interstate commerce and communications, maintain
foreign embassies, or pay federal judges and other government officials. Furthermore, other countries
would be reluctant to loan money to the United States if the federal government lacked the ability to impose
taxes in order to repay its debts. Besides giving more power to populous states, the Virginia Plan also
favored a strong national government that would legislate for the states in many areas and would have the
power to veto laws passed by state legislatures.
Others, however, feared that a strong national government might become too powerful and use its
authority to oppress citizens and deprive them of their rights. They advocated a central government with
sufficient authority to defend the nation but insisted that other powers be left to the states, which were
believed to be better able to understand and protect the needs and interests of their residents. Such
delegates approved the approach of the New Jersey Plan, which retained the unicameral Congress that had
existed under the Articles of Confederation. It gave additional power to the national government, such as
the power to regulate interstate and foreign commerce and to compel states to comply with laws passed by
Congress. However, states still retained a lot of power, including power over the national government.
Congress, for example, could not impose taxes without the consent of the states. Furthermore, the nation’s
chief executive, appointed by the Congress, could be removed by Congress if state governors demanded it.
Individual Liberty vs. Social Stability
The belief that the king and Parliament had deprived colonists of their liberties had led to the Revolution,
and many feared the government of the United States might one day attempt to do the same. They wanted
and expected their new government to guarantee the rights of life, liberty, and property. Others believed it
was more important for the national government to maintain order, and this might require it to limit
personal liberty at times. All Americans, however, desired that the government not intrude upon people’s
rights to life, liberty, and property without reason.
COMPROMISE AND THE CONSTITUTIONAL DESIGN OF AMERICAN GOVERNMENT
Beginning in May 1787 and throughout the long, hot Philadelphia summer, the delegations from twelve
states discussed, debated, and finally—after compromising many times—by September had worked out a
new blueprint for the nation. The document they created, the U.S. Constitution, was an ingenious
instrument that allayed fears of a too-powerful central government and solved the problems that had
beleaguered the national government under the Articles of Confederation. For the most part, it also
resolved the conflicts between small and large states, northern and southern states, and those who favored
a strong federal government and those who argued for state sovereignty.
The Great Compromise
The Constitution consists of a preamble and seven articles. The first three articles divide the national
government into three branches—Congress, the executive branch, and the federal judiciary—and describe
the powers and responsibilities of each. In Article I, ten sections describe the structure of Congress, the
basis for representation and the requirements for serving in Congress, the length of Congressional terms,
Link to Learning
The closest thing to minutes of the Constitutional Convention is the collection of James Madison’s
letters and notes (http://www.openstax.org/l/29MadisonPapers) about the proceedings in
Philadelphia. Several such letters and notes may be found at the Library of Congress’s American Memory
Chapter 2 | The Constitution and Its Origins 51
and the powers of Congress. The national legislature created by the article reflects the compromises reached
by the delegates regarding such issues as representation, slavery, and national power.
After debating at length over whether the Virginia Plan or the New Jersey Plan provided the best model for
the nation’s legislature, the framers of the Constitution had ultimately arrived at what is called the Great
Compromise, suggested by Roger Sherman of Connecticut. Congress, it was decided, would consist of two
chambers: the Senate and the House of Representatives. Each state, regardless of size, would have two
senators, making for equal representation as in the New Jersey Plan. Representation in the House would be
based on population. Senators were to be appointed by state legislatures, a variation on the Virginia Plan.
Members of the House of Representatives would be popularly elected by the voters in each state. Elected
members of the House would be limited to two years in office before having to seek reelection, and those
appointed to the Senate by each state’s political elite would serve a term of six years.
Congress was given great power, including the power to tax, maintain an army and a navy, and regulate
trade and commerce. Congress had authority that the national government lacked under the Articles of
Confederation. It could also coin and borrow money, grant patents and copyrights, declare war, and
establish laws regulating naturalization and bankruptcy. While legislation could be proposed by either
chamber of Congress, it had to pass both chambers by a majority vote before being sent to the president to
be signed into law, and all bills to raise revenue had to begin in the House of Representatives. Only those
men elected by the voters to represent them could impose taxes upon them. There would be no more
taxation without representation.
The Three-Fifths Compromise and the Debates over Slavery
The Great Compromise that determined the structure of Congress soon led to another debate, however.
When states took a census of their population for the purpose of allotting House representatives, should
slaves be counted? Southern states were adamant that they should be, while delegates from northern states
were vehemently opposed, arguing that representatives from southern states could not represent the
interests of enslaved people. If slaves were not counted, however, southern states would have far fewer
representatives in the House than northern states did. For example, if South Carolina were allotted
representatives based solely on its free population, it would receive only half the number it would have
received if slaves, who made up approximately 43 percent of the population, were included.7
The Three-Fifths Compromise, illustrated in Figure 2.8, resolved the impasse, although not in a manner
that truly satisfied anyone. For purposes of Congressional apportionment, slaveholding states were
allowed to count all their free population, including free African Americans and 60 percent (three-fifths) of
their enslaved population. To mollify the north, the compromise also allowed counting 60 percent of a
state’s slave population for federal taxation, although no such taxes were ever collected. Another
compromise regarding the institution of slavery granted Congress the right to impose taxes on imports in
exchange for a twenty-year prohibition on laws attempting to ban the importation of slaves to the United
States, which would hurt the economy of southern states more than that of northern states. Because the
southern states, especially South Carolina, had made it clear they would leave the convention if abolition
were attempted, no serious effort was made by the framers to abolish slavery in the new nation, even
though many delegates disapproved of the institution.
Chapter 2 | The Constitution and Its Origins 52
Figure 2.8 This infographic shows the methods proposed for counting slave populations and the resulting Three-
Indeed, the Constitution contained two protections for slavery. Article I postponed the abolition of the
foreign slave trade until 1808, and in the interim, those in slaveholding states were allowed to import as
many slaves as they wished.8 Furthermore, the Constitution placed no restrictions on the domestic slave
trade, so residents of one state could still sell enslaved people to other states. Article IV of the Constitution—
which, among other things, required states to return fugitives to the states where they had been charged
with crimes—also prevented slaves from gaining their freedom by escaping to states where slavery had
been abolished. Clause 3 of Article IV (known as the fugitive slave clause) allowed slave owners to reclaim
their human property in the states where slaves had fled.9
Separation of Powers and Checks and Balances
Although debates over slavery and representation in Congress occupied many at the convention, the chief
concern was the challenge of increasing the authority of the national government while ensuring that it did
not become too powerful. The framers resolved this problem through a separation of powers, dividing the
national government into three separate branches and assigning different responsibilities to each one, as
shown in Figure 2.9. They also created a system of checks and balances by giving each of three branches
of government the power to restrict the actions of the others, thus requiring them to work together.
Chapter 2 | The Constitution and Its Origins 53
Figure 2.9 To prevent the national government, or any one group within it, from becoming too powerful, the
Constitution divided the government into three branches with different powers. No branch could function without the
cooperation of the others, and each branch could restrict the powers of the others.
Congress was given the power to make laws, but the executive branch, consisting of the president and the
vice president, and the federal judiciary, notably the Supreme Court, were created to, respectively, enforce
laws and try cases arising under federal law. Neither of these branches had existed under the Articles of
Confederation. Thus, Congress can pass laws, but its power to do so can be checked by the president, who
can veto potential legislation so that it cannot become a law. Later, in the 1803 case of Marbury v. Madison,
the U.S. Supreme Court established its own authority to rule on the constitutionality of laws, a process
called judicial review.
Other examples of checks and balances include the ability of Congress to limit the president’s veto. Should
the president veto a bill passed by both houses of Congress, the bill is returned to Congress to be voted on
again. If the bill passes both the House of Representatives and the Senate with a two-thirds vote in its favor,
it becomes law even though the president has refused to sign it.
Congress is also able to limit the president’s power as commander-in-chief of the armed forces by refusing
to declare war or provide funds for the military. To date, the Congress has never refused a president’s
request for a declaration of war. The president must also seek the advice and consent of the Senate before
appointing members of the Supreme Court and ambassadors, and the Senate must approve the ratification
of all treaties signed by the president. Congress may even remove the president from office. To do this,
both chambers of Congress must work together. The House of Representatives impeaches the president by
bringing formal charges against him or her, and the Senate tries the case in a proceeding overseen by the
Chief Justice of the Supreme Court. The president is removed from office if found guilty.
According to political scientist Richard Neustadt, the system of separation of powers and checks and
balances does not so much allow one part of government to control another as it encourages the branches
to cooperate. Instead of a true separation of powers, the Constitutional Convention “created a government
of separated institutions sharing powers.”10 For example, knowing the president can veto a law he or she
disapproves, Congress will attempt to draft a bill that addresses the president’s concerns before sending it
to the White House for signing. Similarly, knowing that Congress can override a veto, the president will
Chapter 2 | The Constitution and Its Origins 54
use this power sparingly.
Federal Power vs. State Power
The strongest guarantee that the power of the national government would be restricted and the states
would retain a degree of sovereignty was the framers’ creation of a federal system of government. In a
federal system, power is divided between the federal (or national) government and the state governments.
Great or explicit powers, called enumerated powers, were granted to the federal government to declare
war, impose taxes, coin and regulate currency, regulate foreign and interstate commerce, raise and
maintain an army and a navy, maintain a post office, make treaties with foreign nations and with Native
American tribes, and make laws regulating the naturalization of immigrants.
All powers not expressly given to the national government, however, were intended to be exercised by the
states. These powers are known as reserved powers (Figure 2.10). Thus, states remained free to pass laws
regarding such things as intrastate commerce (commerce within the borders of a state) and marriage. Some
powers, such as the right to levy taxes, were given to both the state and federal governments. Both the
states and the federal government have a chief executive to enforce the laws (a governor and the president,
respectively) and a system of courts.
Figure 2.10 Reserve powers allow the states to pass intrastate legislation, such as laws on commerce, drug use,
and marriage (a). However, sometimes judicial rulings at the federal level may supersede such legislation, as
happened in Obergefell v. Hodges (2015), the recent Supreme Court case regarding marriage equality (b). (credit a:
modification of work by Damian Gadal; credit b: modification of work by Ludovic Bertron)
Although the states retained a considerable degree of sovereignty, the supremacy clause in Article VI of
the Constitution proclaimed that the Constitution, laws passed by Congress, and treaties made by the
federal government were “the supreme Law of the Land.” In the event of a conflict between the states and
the national government, the national government would triumph. Furthermore, although the federal
government was to be limited to those powers enumerated in the Constitution, Article I provided for the
expansion of Congressional powers if needed. The “necessary and proper” clause of Article I provides that
Congress may “make all Laws which shall be necessary and proper for carrying into Execution the
foregoing [enumerated] Powers, and all other Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.”
The Constitution also gave the federal government control over all “Territory or other Property belonging
to the United States.” This would prove problematic when, as the United States expanded westward and
population growth led to an increase in the power of the northern states in Congress, the federal
government sought to restrict the expansion of slavery into newly acquired territories.
Chapter 2 | The Constitution and Its Origins 55
2.4 The Ratification of the Constitution
By the end of this section, you will be able to:
• Identify the steps required to ratify the Constitution
• Describe arguments the framers raised in support of a strong national government and
counterpoints raised by the Anti-Federalists
On September 17, 1787, the delegates to the Constitutional Convention in Philadelphia voted to approve
the document they had drafted over the course of many months. Some did not support it, but the majority
did. Before it could become the law of the land, however, the Constitution faced another hurdle. It had to
be ratified by the states.
THE RATIFICATION PROCESS
Article VII, the final article of the Constitution, required that before the Constitution could become law and
a new government could form, the document had to be ratified by nine of the thirteen states. Eleven days
after the delegates at the Philadelphia convention approved it, copies of the Constitution were sent to each
of the states, which were to hold ratifying conventions to either accept or reject it.
This approach to ratification was an unusual one. Since the authority inherent in the Articles of
Confederation and the Confederation Congress had rested on the consent of the states, changes to the
nation’s government should also have been ratified by the state legislatures. Instead, by calling upon state
legislatures to hold ratification conventions to approve the Constitution, the framers avoided asking the
legislators to approve a document that would require them to give up a degree of their own power. The
men attending the ratification conventions would be delegates elected by their neighbors to represent their
interests. They were not being asked to relinquish their power; in fact, they were being asked to place limits
upon the power of their state legislators, whom they may not have elected in the first place. Finally, because
the new nation was to be a republic in which power was held by the people through their elected
representatives, it was considered appropriate to leave the ultimate acceptance or rejection of the
Constitution to the nation’s citizens. If convention delegates, who were chosen by popular vote, approved
it, then the new government could rightly claim that it ruled with the consent of the people.
The greatest sticking point when it came to ratification, as it had been at the Constitutional Convention
itself, was the relative power of the state and federal governments. The framers of the Constitution believed
that without the ability to maintain and command an army and navy, impose taxes, and force the states to
comply with laws passed by Congress, the young nation would not survive for very long. But many people
resisted increasing the powers of the national government at the expense of the states. Virginia’s Patrick
Henry, for example, feared that the newly created office of president would place excessive power in the
hands of one man. He also disapproved of the federal government’s new ability to
Link to Learning
A growing number of institutes and study centers focus on the Constitution and the founding of the
republic. Examples such as the Institute for the American Constitutional Heritage
(http://www.openstax.org/l/29Heritage) and the Bill of Rights Institute (http://www.openstax.org/l/
29BillRightsIns) have informative public websites with documents and videos. Another example is the
National Constitution Center (http://www.openstax.org/l/29NatlConstCtr) that also holds programs
related to aspects of the enduring U.S. Constitution.
Chapter 2 | The Constitution and Its Origins 56
tax its citizens. This right, Henry believed, should remain with the states.
Other delegates, such as Edmund Randolph of Virginia, disapproved of the Constitution because it created
a new federal judicial system. Their fear was that the federal courts would be too far away from where
those who were tried lived. State courts were located closer to the homes of both plaintiffs and defendants,
and it was believed that judges and juries in state courts could better understand the actions of those who
appeared before them. In response to these fears, the federal government created federal courts in each of
the states as well as in Maine, which was then part of Massachusetts, and Kentucky, which was part of
Perhaps the greatest source of dissatisfaction with the Constitution was that it did not guarantee protection
of individual liberties. State governments had given jury trials to residents charged with violating the law
and allowed their residents to possess weapons for their protection. Some had practiced religious tolerance
as well. The Constitution, however, did not contain reassurances that the federal government would do so.
Although it provided for habeas corpus and prohibited both a religious test for holding office and granting
noble titles, some citizens feared the loss of their traditional rights and the violation of their liberties. This
led many of the Constitution’s opponents to call for a bill of rights and the refusal to ratify the document
without one. The lack of a bill of rights was especially problematic in Virginia, as the Virginia Declaration
of Rights was the most extensive rights-granting document among the states. The promise that a bill of
rights would be drafted for the Constitution persuaded delegates in many states to support ratification. 12
It was clear how some states would vote. Smaller states, like Delaware, favored the Constitution. Equal
representation in the Senate would give them a degree of equality with the larger states, and a strong
national government with an army at its command would be better able to defend them than their state
militias could. Larger states, however, had significant power to lose. They did not believe they needed the
federal government to defend them and disliked the prospect of having to provide tax money to support
the new government. Thus, from the very beginning, the supporters of the Constitution feared that New
York, Massachusetts, Pennsylvania, and Virginia would refuse to ratify it. That would mean all nine of the
remaining states would have to, and Rhode Island, the smallest state, was unlikely to do so. It had not
Thomas Jefferson on the Bill of Rights
John Adams and Thomas Jefferson carried on a lively correspondence regarding the ratification of the
Constitution. In the following excerpt (reproduced as written) from a letter dated March 15, 1789, after the
Constitution had been ratified by nine states but before it had been approved by all thirteen, Jefferson reiterates
his previously expressed concerns that a bill of rights to protect citizens’ freedoms was necessary and should
be added to the Constitution:
“In the arguments in favor of a declaration of rights, . . . I am happy to find that on the whole you are
a friend to this amendment. The Declaration of rights is like all other human blessings alloyed with
some inconveniences, and not accomplishing fully it’s object. But the good in this instance vastly
overweighs the evil. This instrument [the Constitution] forms us into one state as to certain
objects, and gives us a legislative & executive body for these objects. It should therefore guard us
against their abuses of power ……… Experience proves the inefficacy of a bill of rights. True. But
tho it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely
inefficacious. . . . There is a remarkeable difference between the ……. Inconveniences which attend
a Declaration of rights, & those which attend the want of it. ……. The inconveniences of the want of
a Declaration are permanent, afflicting & irreparable: they are in constant progression from bad to
Chapter 2 | The Constitution and Its Origins 57
even sent delegates to the convention in Philadelphia. And even if it joined the other states in ratifying the
document and the requisite nine votes were cast, the new nation would not be secure without its largest,
wealthiest, and most populous states as members of the union.
THE RATIFICATION CAMPAIGN
On the question of ratification, citizens quickly separated into two groups: Federalists and Anti- Federalists.
The Federalists supported it. They tended to be among the elite members of society—wealthy and well-
educated landowners, businessmen, and former military commanders who believed a strong government
would be better for both national defense and economic growth. A national currency, which the federal
government had the power to create, would ease business transactions. The ability of the federal
government to regulate trade and place tariffs on imports would protect merchants from foreign
competition. Furthermore, the power to collect taxes would allow the national government to fund internal
improvements like roads, which would also help businessmen. Support for the Federalists was especially
strong in New England.
Opponents of ratification were called Anti-Federalists. Anti-Federalists feared the power of the national
government and believed state legislatures, with which they had more contact, could better protect their
freedoms. Although some Anti-Federalists, like Patrick Henry, were wealthy, most distrusted the elite and
believed a strong federal government would favor the rich over those of “the middling sort.” This was
certainly the fear of Melancton Smith, a New York merchant and landowner, who believed that power
should rest in the hands of small, landowning farmers of average wealth who “are more temperate, of
better morals and less ambitious than the great.”14 Even members of the social elite, like Henry, feared that
the centralization of power would lead to the creation of a political aristocracy, to the detriment of state
sovereignty and individual liberty.
Related to these concerns were fears that the strong central government Federalists advocated for would
levy taxes on farmers and planters, who lacked the hard currency needed to pay them. Many also believed
Congress would impose tariffs on foreign imports that would make American agricultural products less
welcome in Europe and in European colonies in the western hemisphere. For these reasons, Anti-Federalist
sentiment was especially strong in the South.
Some Anti-Federalists also believed that the large federal republic that the Constitution would create could
not work as intended. Americans had long believed that virtue was necessary in a nation where people
governed themselves (i.e., the ability to put self-interest and petty concerns aside for the good of the larger
community). In small republics, similarities among members of the community would naturally lead them
to the same positions and make it easier for those in power to understand the needs of their neighbors. In a
larger republic, one that encompassed nearly the entire Eastern Seaboard and ran west to the Appalachian
Mountains, people would lack such a strong commonality of interests.15
Likewise, Anti-Federalists argued, the diversity of religion tolerated by the Constitution would prevent the
formation of a political community with shared values and interests. The Constitution contained no
provisions for government support of churches or of religious education, and Article VI explicitly forbade
the use of religious tests to determine eligibility for public office. This caused many, like Henry Abbot of
North Carolina, to fear that government would be placed in the hands of “pagans . . . and Mahometans
It is difficult to determine how many people were Federalists and how many were Anti-Federalists in 1787.
The Federalists won the day, but they may not have been in the majority. First, the Federalist position
tended to win support among businessmen, large farmers, and, in the South, plantation owners. These
people tended to live along the Eastern Seaboard. In 1787, most of the states were divided into voting
districts in a manner that gave more votes to the eastern part of the state than to the western part.17 Thus,
in some states, like Virginia and South Carolina, small farmers who may have favored the Anti-Federalist
position were unable to elect as many delegates to state ratification conventions as those who lived in the
east. Small settlements may also have lacked the funds to send delegates to the convention.18
Chapter 2 | The Constitution and Its Origins 58
In all the states, educated men authored pamphlets and published essays and cartoons arguing either for
or against ratification (Figure 2.11). Although many writers supported each position, it is the Federalist
essays that are now best known. The arguments these authors put forth, along with explicit guarantees that
amendments would be added to protect individual liberties, helped to sway delegates to ratification
conventions in many states.
Figure 2.11 This Massachusetts Sentinel cartoon (a) encourages the state’s voters to join Georgia and neighboring
Connecticut in ratifying the Constitution. Less than a month later, on February 6, 1788, Massachusetts became the
sixth member of the newly formed federal union (b).
For obvious reasons, smaller, less populous states favored the Constitution and the protection of a strong
federal government. As shown in Figure 2.12, Delaware and New Jersey ratified the document within a
few months after it was sent to them for approval in 1787. Connecticut ratified it early in 1788. Some of the
larger states, such as Pennsylvania and Massachusetts, also voted in favor of the new government. New
Hampshire became the ninth state to ratify the Constitution in the summer of 1788.
Figure 2.12 This timeline shows the order in which states ratified the new Constitution. Small states that would
benefit from the protection of a larger union ratified the Constitution fairly quickly, such as Delaware and Connecticut.
Larger, more populous states like Virginia and New York took longer. The last state to ratify was Rhode Island, a state
that had always proven reluctant to act alongside the others.
Although the Constitution went into effect following ratification by New Hampshire, four states still
remained outside the newly formed union. Two were the wealthy, populous states of Virginia and New
Chapter 2 | The Constitution and Its Origins 59
York. In Virginia, James Madison’s active support and the intercession of George Washington, who wrote
letters to the convention, changed the minds of many. Some who had initially opposed the Constitution,
such as Edmund Randolph, were persuaded that the creation of a strong union was necessary for the
country’s survival and changed their position. Other Virginia delegates were swayed by the promise that
a bill of rights similar to the Virginia Declaration of Rights would be added after the Constitution was
ratified. On June 25, 1788, Virginia became the tenth state to grant its approval.
The approval of New York was the last major hurdle. Facing considerable opposition to the Constitution
in that state, Alexander Hamilton, James Madison, and John Jay wrote a series of essays, beginning in 1787,
arguing for a strong federal government and support of the Constitution (Figure 2.13). Later compiled as
The Federalist and now known as The Federalist Papers, these eighty-five essays were originally published
in newspapers in New York and other states under the name of Publius, a supporter of the Roman Republic.
Figure 2.13 From 1787 to 1788, Alexander Hamilton, James Madison, and John Jay authored a series of essays
intended to convince Americans, especially New Yorkers, to support the new Constitution. These essays, which
originally appeared in newspapers, were collected and published together under the title The Federalist in 1788. They
are now known as The Federalist Papers.
The essays addressed a variety of issues that troubled citizens. For example, in Federalist No. 51, attributed
to James Madison (Figure 2.14), the author assured readers they did not need to fear that the national
government would grow too powerful. The federal system, in which power was divided between the
Chapter 2 | The Constitution and Its Origins 60
national and state governments, and the division of authority within the federal government into separate
branches would prevent any one part of the government from becoming too strong. Furthermore, tyranny
could not arise in a government in which “the legislature necessarily predominates.” Finally, the desire of
office holders in each branch of government to exercise the powers given to them, described as “personal
motives,” would encourage them to limit any attempt by the other branches to overstep their authority.
According to Madison, “Ambition must be made to counteract ambition.”
Other essays countered different criticisms made of the Constitution and echoed the argument in favor of
a strong national government. In Federalist No. 35, for example, Hamilton (Figure 2.14) argued that
people’s interests could in fact be represented by men who were not their neighbors. Indeed, Hamilton
asked rhetorically, would American citizens best be served by a representative “whose observation does
not travel beyond the circle of his neighbors and his acquaintances” or by someone with more extensive
knowledge of the world? To those who argued that a merchant and land-owning elite would come to
dominate Congress, Hamilton countered that the majority of men currently sitting in New York’s state
senate and assembly were landowners of moderate wealth and that artisans usually chose merchants, “their
natural patron[s] and friend[s],” to represent them. An aristocracy would not arise, and if it did, its
members would have been chosen by lesser men. Similarly, Jay reminded New Yorkers in Federalist No. 2
that union had been the goal of Americans since the time of the Revolution. A desire for union was natural
among people of such “similar sentiments” who “were united to each other by the strongest ties,” and the
government proposed by the Constitution was the best means of achieving that union.
Figure 2.14 James Madison (a) played a vital role in the formation of the Constitution. He was an important
participant in the Constitutional Convention and authored many of The Federalist Papers. Despite the fact that he did
not believe that a Bill of Rights was necessary, he wrote one in order to allay the fears of those who believed the
federal government was too powerful. He also served as Thomas Jefferson’s vice president and was elected
president himself in 1808. Alexander Hamilton (b) was one of the greatest political minds of the early United States.
He authored the majority of The Federalist Papers and served as Secretary of the Treasury in George Washington’s
Objections that an elite group of wealthy and educated bankers, businessmen, and large landowners would
come to dominate the nation’s politics were also addressed by Madison in Federalist No. 10. Americans
need not fear the power of factions or special interests, he argued, for the republic was too big and the
interests of its people too diverse to allow the development of large, powerful political parties.
Chapter 2 | The Constitution and Its Origins 61
Likewise, elected representatives, who were expected to “possess the most attractive merit,” would protect
the government from being controlled by “an unjust and interested [biased in favor of their own interests]
For those who worried that the president might indeed grow too ambitious or king-like, Hamilton, in
Federalist No. 68, provided assurance that placing the leadership of the country in the hands of one person
was not dangerous. Electors from each state would select the president. Because these men would be
members of a “transient” body called together only for the purpose of choosing the president and would
meet in separate deliberations in each state, they would be free of corruption and beyond the influence of
the “heats and ferments” of the voters. Indeed, Hamilton argued in Federalist No. 70, instead of being afraid
that the president would become a tyrant, Americans should realize that it was easier to control one person
than it was to control many. Furthermore, one person could also act with an “energy” that Congress did
not possess. Making decisions alone, the president could decide what actions should be taken faster than
could Congress, whose deliberations, because of its size, were necessarily slow. At times, the “decision,
activity, secrecy, and dispatch” of the chief executive might be necessary.
The arguments of the Federalists were persuasive, but whether they actually succeeded in changing the
minds of New Yorkers is unclear. Once Virginia ratified the Constitution on June 25, 1788, New York
realized that it had little choice but to do so as well. If it did not ratify the Constitution, it would be the last
large state that had not joined the union. Thus, on July 26, 1788, the majority of delegates to New York’s
ratification convention voted to accept the Constitution. A year later, North Carolina became the twelfth
state to approve. Alone and realizing it could not hope to survive on its own, Rhode Island became the last
state to ratify, nearly two years after New York had done so.
Link to Learning
The Library of Congress has The Federalist Papers (http://www.openstax.org/l/29FedPapers) on their
website. The Anti-Federalists also produced a body of writings, less extensive than The Federalists
Papers, which argued against the ratification of the Constitution. However, these were not written by one
small group of men as The Federalist Papers had been. A collection of the writings that are unofficially
called The Anti-Federalist Papers (http://www.openstax.org/l/29AntiFedPapers) is also available
Finding a Middle Ground
One of the objections raised to the Constitution’s new government was that it did not set term limits for members
of Congress or the president. Those who opposed a strong central government argued that this failure could
allow a handful of powerful men to gain control of the nation and rule it for as long as they wished. Although the
framers did not anticipate the idea of career politicians, those who supported the Constitution argued that
reelecting the president and reappointing senators by state legislatures would create a body of experienced
men who could better guide the country through crises. A president who did not prove to be a good leader
would be voted out of office instead of being reelected. In fact, presidents long followed George Washington’s
example and limited themselves to two terms. Only in 1951, after Franklin Roosevelt had been elected four
times, was the Twenty-Second Amendment passed to restrict the presidency to two terms.
Are term limits a good idea? Should they have originally been included in the Constitution? Why or why not?
Are there times when term limits might not be good?
Chapter 2 | The Constitution and Its Origins 62
2.5 Constitutional Change
By the end of this section, you will be able to:
• Describe how the Constitution can be formally amended
• Explain the contents and significance of the Bill of Rights
• Discuss the importance of the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments
A major problem with the Articles of Confederation had been the nation’s inability to change them without
the unanimous consent of all the states. The framers learned this lesson well. One of the strengths they built
into the Constitution was the ability to amend it to meet the nation’s needs, reflect the changing times, and
address concerns or structural elements they had not anticipated.
THE AMENDMENT PROCESS
Since ratification in 1789, the Constitution has been amended only twenty-seven times. The first ten
amendments were added in 1791. Responding to charges by Anti-Federalists that the Constitution made
the national government too powerful and provided no protections for the rights of individuals, the newly
elected federal government tackled the issue of guaranteeing liberties for American citizens. James
Madison, a member of Congress from Virginia, took the lead in drafting nineteen potential changes to the
Madison followed the procedure outlined in Article V that says amendments can originate from one of two
sources. First, they can be proposed by Congress. Then, they must be approved by a two-thirds majority in
both the House and the Senate before being sent to the states for potential ratification. States have two ways
to ratify or defeat a proposed amendment. First, if three-quarters of state legislatures vote to approve an
amendment, it becomes part of the Constitution. Second, if three-quarters of state-ratifying conventions
support the amendment, it is ratified. A second method of proposal of an amendment allows for the
petitioning of Congress by the states: Upon receiving such petitions from two-thirds of the states, Congress
must call a convention for the purpose of proposing amendments, which would then be forwarded to the
states for ratification by the required three-quarters. All the current constitutional amendments were
created using the first method of proposal (via Congress).
Having drafted nineteen proposed amendments, Madison submitted them to Congress. Only twelve were
approved by two-thirds of both the Senate and the House of Representatives and sent to the states for
ratification. Of these, only ten were accepted by three-quarters of the state legislatures. In 1791, these first
ten amendments were added to the Constitution and became known as the Bill of Rights.
The ability to change the Constitution has made it a flexible, living document that can respond to the
nation’s changing needs and has helped it remain in effect for more than 225 years. At the same time, the
framers made amending the document sufficiently difficult that it has not been changed repeatedly; only
seventeen amendments have been added since the ratification of the first ten (one of these, the Twenty-
Seventh Amendment, was among Madison’s rejected nine proposals).
KEY CONSTITUTIONAL CHANGES
The Bill of Rights was intended to quiet the fears of Anti-Federalists that the Constitution did not
adequately protect individual liberties and thus encourage their support of the new national government.
Many of these first ten amendments were based on provisions of the English Bill of Rights and the Virginia
Declaration of Rights. For example, the right to bear arms for protection (Second Amendment), the right
not to have to provide shelter and provision for soldiers in peacetime (Third Amendment), the right to a
trial by jury (Sixth and Seventh Amendments), and protection from excessive fines and from
Chapter 2 | The Constitution and Its Origins 63
cruel and unusual punishment (Eighth Amendment) are taken from the English Bill of Rights. The Fifth
Amendment, which requires among other things that people cannot be deprived of their life, liberty, or
property except by a legal proceeding, was also greatly influenced by English law as well as the protections
granted to Virginians in the Virginia Declaration of Rights.
Other liberties, however, do not derive from British precedents. The protections for religion, speech, the
press, and assembly that are granted by the First Amendment did not exist under English law. (The right to
petition the government did, however.) The prohibition in the First Amendment against the establishment
of an official church by the federal government differed significantly from both English precedent and the
practice of several states that had official churches. The Fourth Amendment, which protects Americans
from unwarranted search and seizure of their property, was also new.
The Ninth and Tenth Amendments were intended to provide yet another assurance that people’s rights
would be protected and that the federal government would not become too powerful. The Ninth
Amendment guarantees that liberties extend beyond those described in the preceding documents. This was
an important acknowledgment that the protected rights were extensive, and the government should not
attempt to interfere with them. The Supreme Court, for example, has held that the Ninth Amendment
protects the right to privacy even though none of the preceding amendments explicitly mentions this right.
The Tenth Amendment, one of the first submitted to the states for ratification, ensures that states possess
all powers not explicitly assigned to the federal government by the Constitution. This guarantee protects
states’ reserved powers to regulate such things as marriage, divorce, and intrastate transportation and
commerce, and to pass laws affecting education and public health and safety.
Of the later amendments only one, the Twenty-First, repealed another amendment, the Eighteenth, which
had prohibited the manufacture, import, export, distribution, transportation, and sale of alcoholic
beverages. Other amendments rectify problems that have arisen over the years or that reflect changing
times. For example, the Seventeenth Amendment, ratified in 1913, gave voters the right to directly elect
U.S. senators. The Twentieth Amendment, which was ratified in 1933 during the Great Depression, moved
the date of the presidential inauguration from March to January. In a time of crisis, like a severe economic
depression, the president needed to take office almost immediately after being elected, and modern
transportation allowed the new president to travel to the nation’s capital quicker than before. The Twenty-
Second Amendment, added in 1955, limits the president to two terms in office, and the Twenty-Seventh
Amendment, first submitted for ratification in 1789, regulates the implementation of laws regarding salary
increases or decreases for members of Congress.
Of the remaining amendments, four are of especially great significance. The Thirteenth, Fourteenth, and
Fifteenth Amendments, ratified at the end of the Civil War, changed the lives of African Americans who
had been held in slavery. The Thirteenth Amendment abolished slavery in the United States. The
Fourteenth Amendment granted citizenship to African Americans and equal protection under the law
regardless of race or color. It also prohibited states from depriving their residents of life, liberty, or property
without a legal proceeding. Over the years, the Fourteenth Amendment has been used to require states to
protect most of the same federal freedoms granted by the Bill of Rights.
The Fifteenth and Nineteenth Amendments extended the right to vote. The Constitution had given states
the power to set voting requirements, but the states had used this authority to deny women the right to
Link to Learning
Learn more about the formal process of amending the Constitution (http://www.openstax.org/l/
29AmendProcess) and view exhibits related to the passage of specific amendments at the National
Chapter 2 | The Constitution and Its Origins 64
vote. Most states before the 1830s had also used this authority to deny suffrage to property-less men and
often to African American men as well. When states began to change property requirements for voters in
the 1830s, many that had allowed free, property-owning African American men to vote restricted the
suffrage to white men. The Fifteenth Amendment gave men the right to vote regardless of race or color,
but women were still prohibited from voting in most states. After many years of campaigns for suffrage,
as shown in Figure 2.15, the Nineteenth Amendment finally gave women the right to vote in 1920.
Subsequent amendments further extended the suffrage. The Twenty-Third Amendment (1961) allowed
residents of Washington, DC to vote for the president. The Twenty-Fourth Amendment (1964) abolished
the use of poll taxes. Many southern states had used a poll tax, a tax placed on voting, to prevent poor
African Americans from voting. Thus, the states could circumvent the Fifteenth Amendment; they argued
that they were denying African American men and women the right to vote not because of their race but
because of their inability to pay the tax. The last great extension of the suffrage occurred in 1971 in the
midst of the Vietnam War. The Twenty-Sixth Amendment reduced the voting age from twenty-one to
eighteen. Many people had complained that the young men who were fighting in Vietnam should have the
right to vote for or against those making decisions that might literally mean life or death for them. Many
other amendments have been proposed over the years, including an amendment to guarantee equal rights
to women, but all have failed.
Figure 2.15 Suffragists encourage Ohio men to support votes for women. Before the Nineteenth Amendment was
added to the Constitution in 1920, only a few western states such as Wyoming gave women the right to vote. These
women seem to be attracting a primarily female audience to hear their cause.
Guaranteeing Your First Amendment Rights
The liberties of U.S. citizens are protected by the Bill of Rights, but potential or perceived threats to these
freedoms arise constantly. This is especially true regarding First Amendment rights. Read about some of these
threats at the American Civil Liberties Union (ACLU) (https://openstax.org/l/29AmCivLU) website and let
people know how you feel about these issues.
What issue regarding First Amendment protections causes you the most concern?
Chapter 2 | The Constitution and Its Origins 65
Anti-Federalists those who did not support ratification of the Constitution
Articles of Confederation the first basis for the new nation’s government; adopted in 1781; created an
alliance of sovereign states held together by a weak central government
bicameral legislature a legislature with two houses, such as the U.S. Congress
Bill of Rights the first ten amendments to the U.S. Constitution; most were designed to protect
fundamental rights and liberties
checks and balances a system that allows one branch of government to limit the exercise of power by
another branch; requires the different parts of government to work together
confederation a highly decentralized form of government; sovereign states form a union for purposes
such as mutual defense
Declaration of Independence a document written in 1776 in which the American colonists proclaimed
their independence from Great Britain and listed their grievances against the British king
enumerated powers the powers given explicitly to the federal government by the Constitution (Article I,
Section 8); power to regulate interstate and foreign commerce, raise and support armies, declare war, coin
money, and conduct foreign affairs
federal system a form of government in which power is divided between state governments and a
Federalists those who supported ratification of the Constitution
Great Compromise a compromise between the Virginia Plan and the New Jersey Plan that created a two-
house Congress; representation based on population in the House of Representatives and equal
representation of states in the Senate
natural rights the right to life, liberty, and property; believed to be given by God; no government may
New Jersey Plan a plan that called for a one-house national legislature; each state would receive one vote
republic a form of government in which political power rests in the hands of the people, not a monarch,
and is exercised by elected representatives
reserved powers any powers not prohibited by the Constitution or delegated to the national
government; powers reserved to the states and denied to the federal government
separation of powers the sharing of powers among three separate branches of government
social contract an agreement between people and government in which citizens consent to be governed
so long as the government protects their natural rights
supremacy clause the statement in Article VI of the Constitution that federal law is superior to laws
passed by state legislatures
The Federalist Papers a collection of eighty-five essays written by Alexander Hamilton, James Madison,
and John Jay in support of ratification of the Constitution
Three-Fifths Compromise a compromise between northern and southern states that called for counting
Chapter 2 | The Constitution and Its Origins 66
of all a state’s free population and 60 percent of its slave population for both federal taxation and
representation in Congress
unicameral legislature a legislature with only one house, like the Confederation Congress or the
legislature proposed by the New Jersey Plan
veto the power of the president to reject a law proposed by Congress
Virginia Plan a plan for a two-house legislature; representatives would be elected to the lower house
based on each state’s population; representatives for the upper house would be chosen by the lower
2.1 The Pre-Revolutionary Period and the Roots of the American Political Tradition
For many years the British colonists in North America had peacefully accepted rule by the king and
Parliament. They were proud to be Englishmen. Much of their pride, however, stemmed from their belief
that they were heirs to a tradition of limited government and royal acknowledgement of the rights of their
Colonists’ pride in their English liberties gave way to dismay when they perceived that these liberties were
being abused. People had come to regard life, liberty, and property not as gifts from the monarch but as
natural rights no government could take away. A chain of incidents—the Proclamation of 1763, the trial of
smugglers in courts without juries, the imposition of taxes without the colonists’ consent, and the attempted
interference with self-government in the colonies—convinced many colonists that the social contract
between the British government and its citizens had been broken. In 1776, the Second Continental Congress
declared American independence from Great Britain.
2.2 The Articles of Confederation
Fearful of creating a system so powerful that it might abuse its citizens, the men who drafted the Articles of
Confederation deliberately sought to limit the powers of the national government. The states maintained
the right to govern their residents, while the national government could declare war, coin money, and
conduct foreign affairs but little else. Its inability to impose taxes, regulate commerce, or raise an army
hindered its ability to defend the nation or pay its debts. A solution had to be found.
2.3 The Development of the Constitution
Realizing that flaws in the Articles of Confederation could harm the new country and recognizing that the
Articles could not easily be revised as originally intended, delegates from the states who met in
Philadelphia from May through September 1787 set about drafting a new governing document. The United
States that emerged from the Constitutional Convention in September was not a confederation, but it was
a republic whose national government had been strengthened greatly. Congress had been transformed into
a bicameral legislature with additional powers, and a national judicial system had been created. Most
importantly, a federal system had been established with the power to govern the new country.
To satisfy the concerns of those who feared an overly strong central government, the framers of the
Constitution created a system with separation of powers and checks and balances. Although such measures
satisfied many, concerns still lingered that the federal government remained too powerful.
2.4 The Ratification of the Constitution
Anti-Federalists objected to the power the Constitution gave the federal government and the absence of a
bill of rights to protect individual liberties. The Federalists countered that a strong government was
necessary to lead the new nation and promised to add a bill of rights to the Constitution. The Federalist
Papers, in particular, argued in favor of ratification and sought to convince people that the new government
would not become tyrannical. Finally, in June 1788, New Hampshire became the ninth state to approve
Chapter 2 | The Constitution and Its Origins 67
the Constitution, making it the law of the land. The large and prosperous states of Virginia and New York
followed shortly thereafter, and the remaining states joined as well.
2.5 Constitutional Change
One of the problems with the Articles of Confederation was the difficulty of changing it. To prevent this
difficulty from recurring, the framers provided a method for amending the Constitution that required a
two-thirds majority in both houses of Congress and in three-quarters of state legislatures to approve a
The possibility of amending the Constitution helped ensure its ratification, although many feared the
powerful federal government it created would deprive them of their rights. To allay their anxieties, the
framers promised that a Bill of Rights safeguarding individual liberties would be added following
ratification. These ten amendments were formally added to the document in 1791 and other amendments
followed over the years. Among the most important were those ending slavery, granting citizenship to
African Americans, and giving the right to vote to Americans regardless of race, color, or sex.
1. British colonists in North America in the late
seventeenth century were greatly influenced by
the political thought of .
a. King James II
b. Thomas Jefferson
c. John Locke
d. James Madison
2. The agreement that citizens will consent to be
governed so long as government protects their
natural rights is called .
a. the divine right of kings
b. the social contract
c. a bill of rights
d. due process
3. What key tenets of American political thought
were influential in the decision to declare
independence from Britain?
4. What actions by the British government
convinced the colonists that they needed to
declare their independence?
5. What important power did the national
government lack under the Articles of
a. It could not coin money.
b. It could not declare war.
c. It could not impose taxes.
d. It could not conduct foreign affairs.
6. In what ways did Shays’ Rebellion reveal the
weaknesses of the Articles of Confederation?
7. According to the Great Compromise, how
would representation in Congress be apportioned?
a. Each state would have equal representation
in both the House of Representatives and
b. Congress would be a unicameral legislature
with each state receiving equal
c. Representation in the House of
Representatives would be based on each
state’s population and every state would
have two senators.
d. Representation in both the House of
Representatives and the Senate would be
based on a state’s population.
Chapter 2 | The Constitution and Its Origins 68
8. How did the delegates to the Constitutional
Convention resolve their disagreement regarding
a. It was agreed that Congress would abolish
slavery in 1850.
b. It was agreed that a state’s slave population
would be counted for purposes of
representation but not for purposes of
c. It was agreed that a state’s slave population
would be counted for purposes of taxation
but not for purposes of representation.
d. It was agreed that 60 percent of a state’s
slave population would be counted for
purposes of both representation and
9. What does separation of powers mean?
10. Why were The Federalist Papers written?
a. To encourage states to oppose the
b. To encourage New York to ratify the
c. To oppose the admission of slaveholding
states to the federal union.
d. To encourage people to vote for George
Washington as the nation’s first president.
11. What argument did Alexander Hamilton use
to convince people that it was not dangerous to
place power in the hands of one man?
a. That man would have to pass a religious
test before he could become president; thus,
citizens could be sure that he was of good
b. One man could respond to crises more
quickly than a group of men like Congress.
c. It was easier to control the actions of one
man than the actions of a group.
d. both B and C
12. Why did so many people oppose ratification
of the Constitution, and how was their opposition
13. How many states must ratify an amendment
before it becomes law?
14. What is the Bill of Rights?
a. first ten amendments to the Constitution
that protect individual freedoms
b. powers given to Congress in Article I of the
c. twenty-seven amendments added to the
Constitution over the years
d. document authored by Thomas Jefferson
that details the rights of the citizens
15. What did the Fourteenth Amendment
Critical Thinking Questions
16. What core values and beliefs led to the American Revolution and the writing of the Articles of
Confederation? How do these values and beliefs affect American politics today?
17. Was Britain truly depriving colonists of their natural rights? Explain your reasoning.
18. Do the Constitution and the Bill of Rights protect the life, liberty, and property of all Americans? Why
or why not?
19. Was the Bill of Rights a necessary addition to the Constitution? Defend your answer.
Chapter 2 | The Constitution and Its Origins 69
20. One of the chief areas of compromise at the Constitutional Convention was the issue of
slavery. Should delegates who opposed slavery have been willing to compromise? Why or
21. Is the federal government too powerful? Should states have more power? If so, what
specific power(s) should states have?
22. What new amendments should be added to the Constitution? Why?
Suggestions for Further Study
Appleby, Joyce. 1976. “Liberalism and the American Revolution.” The New England Quarterly 49
Bailyn, Bernard. 1967. The Ideological Origins of the American Revolution. Massachusetts:
Belknap Press. Beeman, Richard. 2010. Plain, Honest Men: The Making of the American
Constitution. New York: Random
Cook, Don. 1995. The Long Fuse: How England Lost the American Colonies, 1760–1785. New York:
Atlantic Monthly Press.
Drinker Bowen, Catherine. 1967. Miracle at Philadelphia: The Story of the Constitutional
Convention, May to September 1787. Boston: Little, Brown.
Ellis, Joseph. 2015. The Quartet: Orchestrating the Second American Revolution, 1783–1789. New
York: Knopf. Grant, Ruth W. 1991. John Locke’s Liberalism. Chicago: University of Chicago Press.
Knollenberg, Bernard. 1975. Growth of the American Revolution: 1766–1775. New York:
Free Press. Lipsky, Seth. 2011. The Citizen’s Constitution: An Annotated Guide. New York:
Locke, John. 1689. A Letter Concerning Toleration. Translated by
———. 1690. Two Treatises of Government. http://socserv2.socsci.mcmaster.ca/econ/ugcm/3ll3/locke/
Maier, Pauline. 2010. Ratification: The People Debate the Constitution, 1787–1788. New York:
Simon & Schuster.
Morgan, Edward S. 1975. American Slavery, American Freedom. New York: W. Norton and Company.
Szatmary, David P. 1980. Shays’ Rebellion: The Making of an Agrarian Insurrection. Amherst, MA:
University of Massachusetts Press.
Chapter 2 | The Constitution and Its Origins 70
Urofsky, Melvin I., and Paul Finkelman. 2011. A March of Liberty: A Constitutional History of the United
Volume I: From the Founding to 1890. New York: Oxford University Press.
Wood, Gordon. 1998. The Creation of the American Republic, 1776–1787. Chapel Hill, NC: University of North