US Constitutional History

US Constitutional History (An Introduction)

Britain conquered the first colony in America; Virginia in 1607. They achieved this through the purchasing of land. This was of course only possible due to the capitalist framework of American society at that time, such that all colonies were in fact acting as companies.

Subsequently, the 7 Year War, which was fought in the Colonies where Britain fought France & Spain ended in the Treaty of Paris 1763. Overall, Britain does well at this Treaty and receives Canada from France. At the same time, in the Royal Proclamation of 1763, Britain decides to regulate the Americas. In this sense they decided to impose mercantilism (the economic theory that trade generates wealth and is stimulated by the accumulation of profitable balances, which a government should encourage by means of protectionism).

This form of protectionist trading, began with the 13 Colonies shortly after the 1763 Proclamation. But, why did Britain want to do this, apart from simple imperialist endeavors? There were two main reasons:

  • To pay back Britain’s war debt.
  • Britain is London-centric – they don’t want to lose power on the world stage.

The 13 Colonies at this time were: Delaware, Pennsylvania, New Jersey, Connecticut, Massachusetts, Maryland, South Carolina, North Carolina, New Hampshire, Virginia, New York and Rhode Island (these are all on the east coast of America).

So, how did the British impose mercantilism on the 13 Colonies? They achieved it largely through economic means such as the:

  • Sugar Act – imposed taxes on suger import/export.
  • Currency Act – Britain declared themselves in charge of the Colony’s currency.
  • Stamp Act – Official documents required stamping, which was taxed.
  • Quartering Act – British soldiers should be housed in the Colonies and they must pay for their upkeep (food, accommodation, etc.).

Initially, all the Colonies boycotted these taxes except for Pennsylvania (they did later come on board however).

But, why were the Colonies at issue with the taxes? In fact, they weren’t necessarily opposed to the taxes being imposed on them per se, what they were in fact at issue with was as the famous phrase posits: “No taxation without representation.” In simple terms, the Colonists wanted recognition in Westminster as an entity unto themselves.

It is necessary to look at a short timeline of important events:

  • 1765 – Stamp Act Congress – issues a Declration of Rights and Grievances.
  • 1766 – Stamp Act repealed – but, to save face, the British Government issues a Declaratory Act (noting the British Government still has control).
  • 1767 – Townsend Acts – these Acts taxed everything from paper to tea. With the money, the British Government funded judges and governors in the Colonies, so as to make sure their loyalty lay with Westminster.
  • 1770 – 5th March – ‘Boston Massacre’ – This came in response to the Townsend Acts. Citizens threw snowballs at soldiers. After them mistaking this for some heavy attack, they opened fire and killed 5 Americans (snowballed into something big).
    • In response, Britain repealed the Townsend Acts, but later enacted the Tea Act.
    • As a result, the Boston Tea Party came to throw tea overboard on ships so as to simply rebel.
  • Then came a series of Acts: (this list is not exhaustive)
    • Quebec Act – Britain extended control in Quebec
    • Boston Port Act – British closed the port in Boston and wouldn’t re-open it until all taxes were paid.
    • Administration of Justice Act – British Soldiers could only be tried in England, even for crimes committed in the Colonies.
    • Massachusetts Government Act – This limited the number of town hall meetings allowed.
    • Quartering Act 1774 – Gave rights to troops to live in houses of colonists without permission.
  • 1774 – First Continental Congress (in Philadelphia) – this came in response to the Acts imposed by the British. 12 out of 13 States were present (Georgia was absent) and they petitioned the King with regard to their grievances.
  • The SHOT ‘heard round the world’ – this started the two battles below in 1775 and in effect, started the chain of events leading to the signing of the Declaration of Independence.
  • 1775 – Battle of Lexington & Concord  +  Battle of Bunker Hill
  • 1775 – Second Continental Congress – This united all 13 Colonies under George Washington – they managed to get loans from other European Empires, namely France and Spain to fight the British in a Civil war.

John Locke, Two Treatises of Government, 1689

John Locke, in his early piece provided, unknowingly, a social construction from which the Colonies would follow so as to succeed in their declaration of independence.

The main arguments he made were that:

  • All people are equal and free, and entitled to basic rights (natural rights).
  • A Government should be formed on the basis of a Social Contract (Constitution) which would allow certain powers to be exercised on the basis of a limited mandate by institutions established for the purpose.
  • Locke went on to question why anybody would want to give up their freedoms for if he is “absolute lord of his own person and possessions” this would not be possible.
    • He reasoned that the enjoyment of such freedoms is very uncertain when those freedoms are vulnerable, constantly exposed to the violation of others. The man would want to join a united society which stands for the mutual preservation of their lives, liberties and estates.
  • Locke stated that there would always remain a persistent right of resistance by which the mandate may be revoked, so as to deter against tyranny.

Locke also believed that the Legislative power was the most powerful and important one. He believed it was the one most vulnerable to the abuse of its own power. As a result, he noted that the legislative should be created only by those who made the mandate (Constitution) and they should also be subject to their own laws.

Locke also saw the executive and judicial powers as being merged. He saw however that the separation of power between the legislature and executive be vast. “In all Cases, whilst the Government subsists, the Legislative is the Supream Power.”

Thomas Paine, Common Sense, 1776

This paper was written so as to encourage revolt against the British in the Colonies.

  • It described monarchy as “the most preposterous invention.”
  • Hereditary succession tied us to the same fate generation after generation. “ASS FOR A LION”.

Paine then turned from the general to the specific and discussed the quest for American independence. He described it as “The sun never shined on a cause of greater worth”. He also questioned how an island (Britain) could rightly govern a continent; he found this absurd.

Paine also described America as a land where the rule of law would reign. “In America THE LAW IS KING. For as in absolute governments the King is law…” “A Government of our crown is our natural right.”

Paine also called for a unilateral declaration of independence (UPI) for the following reasons:

  1. To make headway in the international political arena – for no power may mediate an upcoming independent State.
  2. France & Spain would have no interest in helping if the US wanted to remain with Britain
  3. Without a UPI, it is the Americans who are going against the rule of law (they are rebelling)
  4. Declaring independence puts the rebels inside the rule of law (their own law).

Following an analysis of these two important papers, we will continue now with a timeline of events.

  • 1776 – 4th July – Second Continental Congress (all 13 Colonies) approved the Declaration of Independence (written mostly by Thomas Jefferson).
  • 1777 – Adopted the Articles of Confederation – this is in reality the first Constitution of the USA.
    • But, what is a Confederation?
      • This is where the unitary government is weak (as opposed to Federation where the unitary government is strong).
      • This meant that every State was sovereign, and that the federal level would be a ‘League of Friendship’.
        • Nevertheless, the AofC are important as they show an undoubted sense of unity between the 13 Colonies.
  • 1778 – Treaty of Alliance – this was a treaty with France uniting them against the British Empire.
  • 1778 – 1st March – Articles of Confederation were ratified.
  • 1783 – 2nd Treaty of Paris – marked the end of the Revolutionary War.
    • This was signed by the Colonists (John Adams, John Jay, Benjamin Franklin), Britain and France.
  • 1787 – Philadelphia Convention (=Constitutional Convention).

Philadelphia Convention

The founding fathers:

  • John Adams
    • Becomes 2nd President
    • Harvard educated lawyer
  • Benjamin Franklin
    • ‘Genius’ – 70 years old however
  • Alexander Hamilton
    • Constitutional lawyer – only 21 years old.
    • Was a soldier during the war
    • Main author of Federalist Papers
    • Studied at Columbia University
    • Did not like the Articles of Confederation
  • John Jay
    • 1st Chief Justice
    • Wanted a strong central government
  • Thomas Jefferson
    • Principal author of Declaration of Independence
    • 3rd President
  • James Madison
    • 4th President
    • Wanted a Bill of Rights.
  • George Washington
    • ‘Father’ of the USA.
    • Chief strategist
    • Dissatisfied with Articles of Confederation and wanted a strong central government.

Declaration of Independence

There are tensions that were present in the development of the Declaration of Independence.

  • Right of evolution (revolution/resistance)
  • Self-governance
  • Inalienable rights

Thomas Jefferson said also that the slave trade should be abolished, but in the Declaration he was not abolishing slavery altogether – this was because he did not want to create any more problems that there already were. In failing to address this issue he was preserving the unity of the 13 Colonies so as to win independence.

Some tensions were:

  • Federation vs. Confederation
  • Judiciary vs. Executive
  • State level vs. Federal level

In writing the Constitution, the authors had to address questions that would ultimately create what is now known as America. The main questions they considered were:

  • Institutions at Federal level
    • Should there be a federal legislature/judiciary/executive?
      • If so, are they superior to State level institutions?
    • Legislature
      • Bicameral or unicameral?
    • Executive
      • One person or more?
    • Judiciary
      • Permanent or ad hoc?
  • Appointment of officials
    • Election or nomination (by people or another institution)?
      • Judges – how are they to be elected?
        • Parliament?
        • President?
        • People?
        • States?
          • This matters because you are accountable to the institution that elects you (i.e. where your mandate originates from).
  • Term of office
    • How long?
      • Too long –> power overdrive
      • Too short –> no accountability/no time to make change
    • For life?
      • Freedom to make not only populist decisions?
      • Would tyranny or complacency ensue?
    • Impeachment removal from office?
    • Salary?
      • Enough to be independent of bribes?
  • Competences of Different Institutions
    • How many competences to be given to State and Federal levels?
    • What competences are to be given and why?
    • Which is supreme?
      • State?
      • Federal?
    • Who decides on the competences?
  • Decision/Rule making
    • Majority/two-thirds/unanimous/consensus?
      • Different in different institutions?
    • Is the rule to be different for different policy areas?
    • How to amend the Constitution?
    • How to overturn a decision of the legislature?
  • Ratification (of Constitution)
    • All people majority/State majority?
  • Representation
    • Does ‘representation’ mean representation of the people or the States.
      • People = reducing State power
      • State = decreasing individual choice
    • Need to do a population census and it be updated regularly.
      • Men only? Women? Blacks?
        • Are these counted as individuals or as part of a larger finance scheme?

These questions, overall, are trying to achieve one thing – A vision for America. As a result, several plans were drawn up. These will now be looked at (below is a table outlining the way each leans):

State

Federal

New Jersey Plan

Hamilton Plan

Articles of Confederation

Virginia Plan

Virginia Plan

This plan favoured a Federal Government.

Features:

  • Bicameral Parliament
  • People of each State elect 1st House – 1st House elects 2nd House
    • These two houses should elect the Executive and create the Judiciary
  • Setup a ‘Council of Revision’ which can strike down legislation – made up of judges & members of the Executive.
  • State legislature to be eradicated/diminished in power.
  • Rids idea of every State having equal powers.

New Jersey Plan

This plan favored the State.

Features:

  • Noted that the Virginia Plan was illegal in that they did not revise the Articles of Confederation but instead wrote something entirely new.
  • Tried to revise the Articles of Confederation and as a result made only very technical amendments.
    • Only adds to the federal level by creating an Executive, which can be removed by the States.

Hamilton Plan

This plan favored the Federal Government.

Features:

  • Gave lots of powers to the Federal level
    • It was almost deliberately provocative.
  • Governor has the power to veto legislative laws
  • VII – Judicary = 12 judges for life
  • IX – All officials can be impeached – but only by a Federal Court.
  • XI – Prohibits the States from having armies – there should be only 1 American Army – to prevent Civil wars etc.

Connecticut Compromise

Certain questions arose over representation. As a result, the Connecticut Compromise was drawn up.

Features:

  • Bicameral Parliament
    • Lower house: based on population size
    • Upper house: one representative per State
      • The larger States initially disagreed with this but came on board later.

Three-Fifths Compromise

  • This is linked to representation and taxation. It centered on the question of who to count in the population as this is linked to both representation and taxation.
  • It was decided to:
    • Not count Native Americans
    • Only 3/5 of Black population would be counted.
    • All white, free persons would be counted.

On the 17th September 1787, the proposed Constitution was signed. The State legislatures chose to ratify it, not the people directly (only indirectly).

Federalist Papers

The Federalist Papers were written for the newspapers.

  • 85 in total
  • 77 were published – 1787-1788
  • 3 NY Newspapers
  • Authorship was by “Publius” which is Latin for “friend of the people” – but they were written anonymously.
    • We now know the writers were Alexander Hamilton, James Madison and John Jay
  • There have been to date, <200 citations of the Papers by the US Supreme Court of the US.

Federalist #1

Written by: Alexander Hamilton

Features:

  • The organization of self-government will be the first big experiment in Constitutional law.
  • Hamilton recognized that self-interest and despotic power, hostile to the principles of liberty can tear apart the Constitution and good government.
  • “A dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government.”
    • This last quote is in fact a summary of Federalist #84.

Federalist #2

Written by: John Jay

Features:

  • Denounced State level institutions and proposed the reality of Union.
    • He did this in three ways:
      • Through the geography (rivers, streams, chain etc.) bound the people.
      • Through a rhetoric of a Constitution.
      • Through his belief that this country and people were designed for each other.

Federalist #9

Written by: Alexander Hamilton

Features:

  • Hamilton proposed a CONFEDERATE REPUBLIC which would suppress faction and guard against internal corruption.
    • This is however usually associated with a Monarchy.
  • How is this achieved though?
    • An assemblage of societies (States) combine to constitute a new, more powerful one.
    • It is able to withstand external force through its power in unity; and
    • Protect against internal corruptions through the division of the States.
  • If a popular insurrection would arise, the others, as a united entity, would be able to quell it.

Therefore, Unity = protects from outside threats and the individual States themselves protect the USA from internal threats (e.g. corruption, usurpation of supreme power).

Federalist #10

Written by: Unknown

Features: This paper focused on factions (a number of united citizens, by some common agenda, adversed to the rights of citizens or permanent interests of community).

  • There are two methods of controlling factions:
    • Removing its causes
      • By removing liberty; or – This is worse than the disease (faction) itself
      • Giving everyone the same liberties/passions/opinions -This is impossible
    • Controlling its effects
  • So, it is seen that relief is the only solution. How is this achieved?
    • If the faction is less than majority, it will be destroyed by regular vote.
    • If the faction has a majority, one of two things may happen:
      • Government can sacrifice itself to the faction; or
      • We can find a system of Government that can cope.
    • This is hard in a pure democracy because there is no mediation and simple majority rules – there is no representative channel.
    • In a Federalist Republic however, there is a scheme of representation. There are “two great points of difference”
      1. Delegation of Government – in a Federalist Republic, by passing through a wise and chosen body of citizens who discern the true interest of the citizens, factions will not be allowed to materialize.
      2. Greater number of citizens and greater sphere of country – Extending the sphere, you take in a greater number of citizens which makes it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.
        • This second point is extremely interesting. Considering the recent Arab Spring where technology (i.e. social media) has been used extensively to unite a majority with a common cause, it lays to be seen whether this second point has any real bearing in the modern day societies in which we live.

Also, the biggest assumption that belies this whole paper is that all people strive for a common justice, something that is sometimes taken for granted.

Federalist #51

Written by: Madison or Hamilton

Features:

  • This paper asks: How to protect the Separation of Powers
    • Each department should have its own will and the members must be appointed in a manner which respects this.
    • Following this, the people should ultimately vote on everything, however this is unpractical and derivations to this must be made.
    • Judges should have tenure and independence should be guaranteed also through sufficient remuneration.
  • Checks and balances are of course required.

Federalist #78

Written by: Alexander Hamilton

This is also the most famous Paper written as it talks about the right of the judiciary.

Features:

  • Judicial branch is the least dangerous. It does not control the purse or the sword and therefore does not have WILL or FORCE, it only has judgment and this is only enforceable insofar as the Executive wants it to be.
    • The judiciary cannot compare to the legislature and executive.
  • Hamilton proposes two ways to protect the legislature:
    1. Tenure – this is considered an “indispensable thing”
    2. Judicial Review – Although nothing is said about this in the Constitution, Hamilton refers to the Constitution as a “limited one” and therefore all powers are subject to limits imposed by the Court.
      • Therefore –> Limiter Constitution = Judicial Review
  • The rest of the paper deals with the issue of opponents saying that by doing these things, the judiciary will in fact become more powerful than the other two organs.
    • The main objection is that the legislature is democratically elected and so can have more power, whereas judges are not. Hamilton gives 3 responses to this:
      1. Legislature has been created by the Constitution and has a mandate by the Constitution. Therefore it cannot operate beyond this mandate – it is for the judiciary to determine when it is doing so. Legislature < Constitution
      2. It always has been and always will be the Courts job to interpret the law
      3. Judges will enforce the Constitution and should be governed by it. Through enforcing the Constitution you are enforcing the will of the people.
        • This last argument is the best.

Federalist #84

Written by: Alexander Hamilton

Features:

  • Provides a justification for the Bill of Rights
  • All of his arguments are derived from the same premise, which is that the best way to protect individuals is to have a working Separation of Powers, such that no single organ can trample the will of the individuals.
    • In this respect, it is seen that Separation of Powers > Enumerated Rights

As a result of #84, in 1791 a Bill of Rights is introduced. Some key elements are:

  • 1st Amendment
    • Freedom of religion
    • Freedom of Assembly
    • Freedom of Speech
    • Freedom of the Press
    • Freedom to Petition
  • 2nd Amendment
    • Right to bear arms
  • 4th Amendment
    • Habeas Corpus + secure in their persons
  • 5th Amendment
    • Privilege against self-incrimination

Moving up the timeline now, we will look at some key constitutional cases in the USA.

Key Constitutional Cases

  • ***Marbury v Madison 5 US 137 (1803)
    • This case establishes judicial review.
    • Marshall J achieves this through a 4 step argument:
      1. He first says that the Constitution belongs to the people and it is they who decide what it may consist of. He also says that the Constitution was designed to be permanent.
      2. The legislature has powers, but these are limited by the Constitution.
      3. The Constitution is supreme to all other forms of law and must govern all cases.
      4. It is emphatically the province and duty of the judicial department to say what the law is.
  • ***Dred Scott v Sandford 60 US 393 (1857)
    • This case concerned racial discrimination.
    • Background: Dred Scott was a slave, and owned by a doctor working in the army and therefore travelled with Dred through numerous States. In some States, the slaves were free and he could therefore sue for freedom. However, he is treated well and does not. The doctor dies however and his wife inherits Dred and decides to hire him out, but he is living in a State where he cannot sue. He therefore sues at the Federal level.
    • Issue: Are negroes citizens? (Under the Constitution, all citizens are free, however this doesn’t seem to inlcude blacks).
    • Held: No, they are not citizens.
      • This was decided on the basis that the people who wrote the Constitution never intended for blacks to be considered as citizens – this is an originalist interpretation.
    • However, after the Civil War, the 13th and 14th Amendments come to the fore where:
      • 13th Amendment – Bans slavery, except for criminals.
      • 14th Amendment – All persons have equal protection of the laws (vocabulary changed from ‘citizen’ to ‘person’).
  • ***Plessy v Ferguson 163 US 537 (1896)
    • “Separate but equal”. Even after the 13th and 14th Amendments were passes, there was still no proper equality in US society.
    • This case concerned railway carriages and the separation of blacks and whites pursuant to Act of 1890 – Act of General Assembly of State of Louisiana.
    • Argued: 13th Amendment – badge of slavery  & 14th Amendment – not being treated equally.
    • Held: The majority upheld the law segregating blacks and whites: However, Hanlon J dissented: He found that the Act was contrary to the 13th and 14th Amendments and that there was obvious racism.
  • ***Brown v Board of Education of Topeka 347 US 483 (1954)
    • This case was argued as part of the Warren Court which was a liberal civil rights court set up in the 1950s and 1960s.
    • Case concerned the segregation of whites and blacks in schools where whites had seemingly better facilities for learning.
    • “We must consider public education in the light of its… present place in American life.”
    • Held: The doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.

2 responses to “US Constitutional History

  1. Hi – love the site – I’m a law student at Kings and wondered if you might be free for a quick chat ?

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